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Digitized  by  the  Internet  Archive 
in  2010  with  funding  from 
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http://www.archive.org/details/correspondencebOOgeor 


CORRESPONDENCE 


BETWEEN 


GOVERNOR   BROWJN 


AND 


A 


PRESIDENT  DAVIS, 


ON 


V 

} 


THE  CONSTITUTIONALITY    .  W 


OJf 


THE  CONSCRIPTION   ACT.      S 


L 


w 


ATLANTA,    GA.: 

ATLANTA    USTTKLLIGKNCKR    PRINT. 


1  862 


i 


I 


X 


CORRESPONDENCE 


GOVERNOR   BROWN 


A  V  D 


PRESIDENT  DAVIS, 


■• 


THE  CONSTITUTIONALITY 


OF 


THE  CONSCRIPTION  ACT. 


ATLANTA.    <;A.: 
a:  i  .AVi  a    [NTELLIi  r.K   PRIKT. 


CORRESPONDENCE. 


EXECUTIVE  DEPARTMENT,      ) 

MlLLBDOEVILLB,   G.\.,   Al'Rll.  22d,  1862.  \ 

His  Excelled  v  Jeffsbsos  Davis, 

Richmond,  Virginia : 

_/?<?«/•  iS»r:  So  soon  as  I  received  from  the  Secretin-  of  War 
official  notice  of  the  passage,  by  Congress,  of  the  Conscription 
Act,  placing  in  the  military  service  of  the  Confederate  States 
all  white  men  between  the  ages  of  18  and  3S  years,  I  saw  that 
it  was  impossible  for  me  longer  to  retain  in  the  field  the  Georgia 
State  troops,  without  probable  collision  and  conflict  with  the 
Confederate  authorities,  in  the  face  of  the  enemy.  I,  therefore, 
acquiesced  in  the  necessity  which  compelled  me  to  transfer  the 
State  forces  to  the  command  of  the  Confederate  General  at  Sa- 
vannah, and  tendered  to  General  Lawton,  who  commands  the 
Military  District  of  Georgia,  not  only  the  Conscripts  in  the  State 
Army,  but,  also,  those  not  Conscripts,  for  the  unexpired  term 
of  their  enlistment.  General  Lawton  accepted  the  command 
with  the  assurance  that  he  would  interfere  as  little  a-  ]■ 
with  the  company  and  regimental  organizations  of  the  troops. 
This  assurance,  I  trust,  the  Government  will  permit  him  to  carry 
out  in  the  same  spirit  of  liberality  in  which  it  was  given.  If  thu 
State  Regiments  are  broken  up  and  the  Conscripts  beli 
them  forced  into  other  organizations  against  their  consent,  it 
will  have  a  very  discouraging  effect.  If  the  Regiments  and 
Companies  were  preserved,  and  permission  giv<  n  to  the  officers 
to  fill  up  their  ran  ■■rails,  then          aid    be  n<>   doubt  of 

their  ability  to  do  bo;  and  I  think  they  I  >  ex- 

pert  this  privilege. 

Georgia  ha*  promptly  responded  to  every  call  made  upon 
for  you  for  troop«.  and  has  always  gives  more  than  y 


«•»    4«m/ 


she  now  lias  about  H0,000  in  the  field.     Had  you  called  upou  her 
Executive  for  20,00c)  more,  (if  her  just  quota,)  they  would  have 
been  furnished  without  delay.     The  plea  of  necessity,  so  far,  at 
least,  as  this  State  is  concerned,  cannot  be  set  up  in  defen 
the  Conscription  Act. 

When  the  Governmenl  of  the  United  States  disregarded  and 
attempted  to  trample  upon  the  rights  of  the  State-.  Georgia  sel 
its  power  at  defiance  and  seceded  from  the  Union,  rather  than 
submit  to  the  consolidation  of  all  power  in  the  hands  of  the  Cen- 
tral or  Federal  Government. 

The  Conscription  Act  not  only  puts  it  in  the  power  of  the  Ex- 
ecutive of  the  Confederacy  to  disorganize  her  troops,  which  she 
was  compelled  to  call  into  the  field,  for  her  own  defence,  in  ad- 
dition to  her  just  quota,  because  of  the  neglect  of  the  Confede- 
racy to  place  sufficient  troops  upon  her  coast  for  her  defence — 
which  would  have  required  less  than  half  the  number  she  has 
sent  to  the  held — but,  also,  places  it  in  his  powe*  to  destroy  her 
State  Government  by  disbanding  her  law-making  power. 

The  Constitution  oi'  this  State  makes  every  male  citizen  who 
has  attained  the  age  of  21  years  eligible  to  a  seat  in  the  House 
of  Representatives  of  the  General  Assembly,  and  every  one  who 
has  attained  the  age  of  25  eligible  to  a  seat  in  the  Senate.— 
There  are  a  large  number  of  the  members  of  the  General  As- 
sembly between  the  ages  of  18  and  :;•">.  They  are  white  eitizeds 
of  the  Confederate  States,  and  there  is  no  statute  in  the  State, 
and  I  am  aware  of  none  in  the  Confederate  States  Code,  which 
exempts  them  from  military  duty.  They,  therefore,  fall  within 
the  provisions  of  the  Conscription  Act.  ft  may  become  neoea 
Sary  for  me  to  convene  the  General  Assembly  in  extra  session  ; 
>>r,  if  not,  the  regular  session  will  commence  the  first  Wednes- 
day in  November.  When  the  members  meet  at  the  Capitol,  if 
not  sooner,  they  might  be  claimed  as  Conscripts  by  a  Confede- 
rate officer,  and  arrested  with  a  view  to  carry  them  to  some  re- 
mote part  of  the  Confederacy,  as  recruits,  to  fill  up  some  Com- 
pany now  in  service.  They  have  no  military  power',  and  could 
only  look  to  the  Executive  of  the  State  for  military  protection: 
and  I  cannot  hesitate  to  say  that,  in  such  case,  I  .should  use  all 
the  remaining  military  force  of  the  State  in  defence  of  a  < 
dinate  Constitutional  branch  of  the  Gov<  i  i  can^  there 


fore;  permit  no  enrollment  oi*  the  members  of  the  General  As- 
sembly under  the  Conscription  Act.  The  same  is  true  of  the 
Judges  of  the  Supreme  and  Superior  Courts  should  any  of  them 
fall  within  the  ages  above  mentioned;  and  of  the  Secretaries  of 
the  Executive  Department ;  the  heads  and  necessary  clerks  oi 
the  other  Departments  of  the  State  Government  ;  and  the  Tax 
Collectors  and  Receivers  of  the  different  counties,  who  arc  now 
in  the  midst  of  their  duties,  and  arc  not  permitted  by  law  t6 
supply  substitutes,  and  whose  duties  must  he  performed,  or  the' 
revenues  of  the  Stale  cannot  he  collected.  The  same  remark 
applies  to  the  Stall'  of  the  Commander-in-Chief  There  is  no 
statute  exempting  them  from  military  duty,  for  the  reason  that 
they  are  at  all  times  subject  to  the  command  of  the  Governor, 
and  are  not  expected  to  go  into  the  ranks. 

The  State's  Quartermaster,  Commissary,  Ordnance  and  En- 
gineers3 Departments,  fall  within  the  same  rule.  The  Major 
Generals,  Brigadier  Generals,  and  other  officers  of  the  Militia, 
would  seem  to  be  entitled  to  like  consideration. 

Regain — the  Western  and  Atlantic-  Kail  Road  is  the  property 

of  the  State,  and  is  under  the  control  ami  management   o\'  the 

Governor.    It  is  a  source  of  revenue  to  the  State,  and  its  suc- 

il  management  is  a  matter  of  great    military   importance, 

both  to  the  State  and  the  Confederacy.      I  now  have  an  efficient 

of  officers  and  workmen  upon   the  Road,   and  must 
pend  operations  if  all  between   L8  and  35  are   taken    away 
the  Road. 

[would,  also,  invite  your  attention  to  the  further  fact   ilia 
the  State  owns  and  controls  the  Georgia   Military  Institul 
Marietta,  and  now  "has  in  the  Institute  over  125  Cadets,  a   largo 
proportion  of  whom  are  within  the  age  of  Conscripts,    [f  thi 

exempted,  this  most  important  Institution  is  broken  \\)>.      I 
must  not  omit,  in  this  connection,  the  students  of  the  Stat' 

\ersity,  and  of  the  other  Colleges  of  the  State.    These  valuable 
Institutions  <.f  learning  musl  also  be  suspended  if  the  law 
forced  against  the  students. 

[  would,  also,  respectfully  call  your  attention  to  the  furl 
faet  that  in  portions  of  our  State  where  the  slave  populati 
heavy,  almost  the  entire  whit'-  male  population  capable  of  bcar- 

ing  arms,  except  the  overseers  on  the  plantations,  are  now   in 


.i4.inf;4 


the  military  service  of  the  Confederacy.  Most  of  these  over- 
are  over^lS  and  under  85,  If  they  are  carried  to  the  field, 
thousands  of  slaves  must  l>e  left  without  overseers,  and  their 
labor  not  only  lost  at  a  time  when  there  is  great  need  of  it  in 
tin.'  production  of  provisions  and  supplies  for  our  armies,  but  the 
peace  and  safety  of  helpless  women  and  children  must  be  imper- 
iled for  want  of  protection  against  bands  of  idle  slaves,  who 
must  he  left  to  roam  over  the  country  without  restraint, 
•  It  is  also  worthy  of  remark,  that  a  large  proportion  of  our 
best  mechanics,  and  of  the  persons  engaged  in  the  various 
branches  of  manufacturing  now  of  vital  importance  1<>  the  suc- 
cess of  our  cause,  are  within  the  ages  which  subject  them  to  the 
provisions  of  the  Conscription  Act. 

My  remark  that  I  cannot  permit  the  enrollment  of  such  State 
officers  as  are  necessary  to  the  existence  of  the  State  Govern 
ment,  and  the  working  of  the  State  Road,  does  not,  of  course, 
apply  to  persons  engaged  in  the  other  useful  branches  of  indus 
try  considered  of  paramount  importance,  but  I  must  ask,  in  jus- 
tice to  the  people  of  this  State,  that  such  exemptions  among 
these  classes  be  made  as  the  public  necessities  may  require. 

As  you  are  well  aware,  the  military  operations  of  the  Govern- 
ment cannot  he  carried  on  without  the  use  of  all  our  3 Jail 
Roads,  and  the  same  necessity  exists  for  the  exemption  of  all 
other  Rail  Road  officers  and  workmen  which  exists  in  the  case 
of  the  State  Road. 

There  are  doubtless  other  important  interests  not  herein  enu- 
merated which  will  readily  occur  to  you,  which  must  lie  kept 
alive  or  the  most  serious  consequences  must  ensue. 

The  Constitution  gives  to  Congress  the  power  to  provide  for 
organizing,  arming  and  disciplining  the  militia,  and  for  govern- 
ing such  part  of  them  as  may  be  employed  in  the  service  of  the 
Confederate  States,  reserving  i<>  tin:  States,  respectively \  the  ap- 
point, 7"  offid  rs,  and  the  authority  of  training  the  mi- 
litia according  to  the  discipline  prescribed  by  Congress.  The 
I  scription  Act  gives  thq  President  the  power  to  enroll  the 
entire  militia  of  the  States  between  18  and  35,  and  takes  from 
I  States  their  constitutional  right  to  appoint  the  officers  and 
to  train  the  militia. 

Wh  ave  to  tie,-  States  the  appointment 


(  f  a  single  officer  to  command  the  militia  employed  in  the  ser: 
vice  of  the  Confederate  States  under  its  provisions,  it  places  it 
in  the  power  of  the  President  to  take  a  Major  General  of  the 
Militia  of  a  State,  if  he  is  not  •">■">  years  of  age,  and  place  him  in 
the  ranks  of  the  Confederate  States  army,  under  the  command 
of  a  3rd  Lieutenant  appointed  by  the  President,  and  to  treat 
him  as  a  deserter  if  he  refuses  to  obey  the  call  and  submit  to 
the  command  of  the  subaltern  placed  over  him. 

I  do  not  wish  to  be  understood,  in  any  portion  of  this  letter, 
to  refer  to  the  intentions  of  the  President,  hut  only  to  the  ex- 
traordinary powers  given  him  by  the  Act. 

This  Art  not  only  disorganizes  the  military  system  of  all  the 
States,  but  consolidates  almost  the  entire  military  power  of  the 
States  in  the  Confederate  Executive  with  the  appointment  of 
the  officers  of  the  militia,  ami  enables  him  at  his  pleasure  to 
cripple  or  destroy  the  civil  government  of  each  State,  by  arrest- 
ing and  carrying  into  the  Confederate  service  the  officers  charged 
by  the  State  Constitution  with  the  administration  of  the  State 
*;  ivernment. 

I  notice  by  a  perusal  bi  the  Conscription  Act  that  the  Presi- 
dent may,  with  the  consent  of  the  Governors  of  the  respective 
States,  employ  State  officers  in  the  enrollment  of  the  Conscripts. 
While  I  shall  throw  no  obstacle  in  the  way  of  the  general  en- 
rollment ot*  persons  embraced  within  the  Act,  except  as  above 
stated,  1  do  not  feel  that  it  is  the  duty  of  the  Executive  of  a 
State  to  employ  actively  the  officers  of  the  State  in  the  execution 
of  a  law  which  virtually  strips  the  State  of  her  constitutional 
military  powers,  and,  if  fully  executed,  destroys  the  Legislative 
Department  of  her  Government,  making  even  the  sessions  of  her 
ably  dependent  upon  the  will  of  the  Confederate 
:  itive.  I  therefore  respectfully  decline  all  connection  with 
the  proposed  enrollment,  and  propose  to  reserve  the  question  of 
tin'  constitutionality  of  the  Act,  and  its  binding  force  upon  the 
people  of  this  State,  for  their  consideration  al  a  time  when  it 
may  less  seriously  embarrass  the  Confed<  racy  in  the  prosecution 
of  the  war. 

You  will  much  oblige  by  informing  me  of  the  extent  to  which 
you  ]  emptions,  if  any,  in  favor  of  the  inti 

otioned,  ai  Bider  of  vital 


importance.     "■  at  lo  our  peo- 

ple, and  they  are  anxious  to  know  your  pleasure  in  the  prena- 

Very  respectfully, 

Your  obedieul  servant, 
JOSEPH  E.  BROWN. 


Richmond,  Aruit  28th,  L862. 
To  His  Excellency  Joseph  E.  Brown, 

Governor  of  the  State  ol  Georgia  : 
,■  Sir: — I  have  received  your  letter  of  the  22d  inst.,  in- 
forming riie  of  your  transfer  of  the  Georgia  State  troops  to 
General  Lawton,  commanding  Confederate  forces  at  Savannah 
— suggesting  that  there  be  as  little  interference  as  possible  cm 
the  part  of  the  Confederate  authorities  with  the  present  organi- 
zation of  those  troops — and  mentioning  various  persons  and 
classes  as  proper  subjects  for  exemption  from  military  service 
under  the  provisions  of  an  "Act  to  further  provide  for  the  pub- 
lic defence,"'  approved  on  the  16th  inst. 

1  enclose  copies  of  the  Act  tor  receiving  State  troops  tender- 
ed, as  organized,  and  of  the  Exemption  Ad.  Bv  the  first,  in- 
terference with  the  present  organization  of  Companies,  Squad- 
rons, Battalions  or  Regiments,  tendered  hy  Governors  of  States, 
is  specially  disclaimed.  By  the  other,  exemptions  are  made 
which  explain  (satisfactorily,  I  trust,)  the  policy  <>f  Congress 
with  regard  to  tin  persons  and  interests  yon 

The  Constitutionality  of :  the  Acl  you  refer  to  as  thi 
scription  Bill,"  is  clearly  nol  derivable  from  the  power  to  call 
out  the  militia,  Imt  from  that  to  raise  armios.  With  regard  to 
ili,.  mode  of  officering  tin-'  troops  now  called  into  the  servi 
t he  Confederacy,  the  intention  of  Congress  is  to  me.  as  to  you, 
io  he  learned  from  its  Act-;  ami,  from  the  terms  employed,  it 
would  seem  that  the  policy  of  election  by  the  troops  themselves 
is  adopted  by  Congress. 

With  ureal  regard,  very  respectfully, 

Vour  obedient  servant, 

Jefferson  da  vis. 


KXIXTTIVE  DEPARTMENT,      I 

Mii.i.kookvu.i.k,  Ga.,  May  9,  1862^  \' 

His  K\(  ki.i.i:\<  x  .Ikfkkkson  Payis:  '  " 

Dear /Sir:  [  have  the  honor  to  acknowledge  the  receipt  of 
your  favor  of  the  28tb  ult.,  in  reply  to  my  letter  to  you  upon  the 
subject  of  the  Conscription  Act.  I  should  not  trouble  you  with 
a  reply,  were  it  not  that  principles  are  involved  of  the*  most 
vital  character,  upon  the  maintenance  of  which,  in  my  opinion, 
depend  not  only  the  rights  and  the  sovereignty  of  the  States, 
but  the  very  existence  of  State  Government. 

While  I  am  always  happy  as  an  individual  to  render  you  any 
assistance  in  my  power, in  the  discharge  of  the  laborious  and 
responsible  duties  assigned  yon,  and  while  1  am  satisfied  you 
will  bear  testimony  that  1  have  never,  as  the  Executive  of  this 
State,  failed  in  a  single  instance  to  furnish  all  the  men,  and  more 
than  you  have  called  for,  and  to  assist  you  with  all  the  other 
means  at  my  command,!  cannot  consent  to  commit  the  State  to 
a  policy  which  is  in  my  judgment  subversive  of  her  sovereignty, 
and  at  War  with  all  the  principles  for  the  support  of  which  Geor- 
gia entered  into  this  revolution. 

It  maybe  said  that  it  is  no  time  to  discuss  constitutional 
questions  in  the'mFdsl  of  revolution,  and  that  State  rights  and 
State  sovereignty  musl  yield  for  a  time  to  the  higher  law  of  ne- 
cessity. If  this  he  a  safe  principle  of  action,  it  cannot  certainly 
apply  4ill  the  necessity  is  shown  to  exist;  and  I  apprehend  it 
would  he  a  dangerous  policy  to  adopt,  were  \vc  i"  admit  that 
isc  i  he  power  of  setting  aside  the  Consti- 
tution, are  to  he  the  judges  of  the  necessity  for  so  doing.  Bui 
did  th  iy  exisl  in  this  case?     The  Conscription  Act  can- 

ap\  "aid   tin'  Government   in  increasing  its  supply  of  a?'m»  or 

n  only  enable  it  to  call  a  larger  number  oi 
into  the  field.  The  difficulty  has  never  been  to  eel  men.  The 
States  have  already  furnished  the  Government  more  than  it  can 
arm,  and  have  from  their  own  means  armed  and  equipped  very 
large  numbers  for  it.  Georgia  has  not  only  furnished  more  than 
you  have  asked,  and  armed  and  equipped,  from  her  own  treasu 
ry,  a  large  proportion  of  those  she  has  aenl  to  the  field,  hut  she 
i  ready  to  furnish  promptly  her  quota  (organised  as  the 
Constitution  provides)  of  any  additional  number  ealled  tor  by 
the  President 


10 

I  beg  leave  again  to  invite  your  attention  to  the  constitutional 
question  involved.  You  say  in  your  letter,  that  the  constitu- 
tionality of  the  act  is  clearly  not  derivable  from  the  power  to 
call  out  the  militia,  but  from  that  to  raise  armies.  Let  us  exam- 
ine this  for  a  moment.  The  8th  section  of  the  1st  article  of  the 
Constitution  defines  the  powers  of  Congress.  The  12th  para- 
graph of  that  section  declares,  that  Congress  "shall  have  power 
to  raise  and  support  armies."  Paragraph  15  gives  Congress 
power  to  provide  for  calling  forth  f*he  militia  to  execute  the  laws 
of  the  Confederate  States,  suppress  insurrections,  and  repel  In- 
vasions. Paragraph  16  gives  Congress  power  to  provide  for  or- 
ganizing, arming  ami  disciplining  the  militia,  and  for  governing 
such  part  of  them  as  may  he  employed  in  the  service  of  the  Con- 
federate States,  reserving  to  tho  States  respectively  the  appoint- 
ment of  the  officers,  and  the  authority  of  training  the  militia  ac- 
cording to  the  discipline  prescribed  by  Congress. 

These  grants  of  power  all  relate  to  the  same  "subject  matter, 
and  are  all  contained  in  the  same  section  of  the  Constitution,  and 
by  a  well  known  rule  of  construction,  must  be  taken  as  a  whole 
and  construed  together. 

It  would  seem  quite  clear,  that  by  the  grant  of  power  to  Con- 
gress to  raise  and  support  armies,  without  qualification,  the  fra- 
mers  of  the  Constitution  intended  the  regular  armies  of  the  Con- 
federacy, and  not  armies  composed  of  the  whole  militia  of  all 
the  States.  If  all  the  power  given  in  the  three  paragraphs 
above  quoted,  is  in  fact  embraced  in  the  Hrst,  in  the  general 
words  to  raise  armies,  then  the  other  two  paragraphs  are  mere 
surplusage,  and  the  framers  of  the  Constitution  were  guilty  of 
the  folly  of  incorporating  into  the  instrument  unmeaning  phrases. 
When  the  States,  by  the  16th  paragraph,  expressly  and  care- 
fully reserved  to  themselves  the  right  to  appoint  the  officers  of 
the  militia,  when  employed  in  the  service  of  the  Confederate 
States,  it  was  certainly  never  contemplated  that  Congress  had 
power,  should  it  become  necessary,  to  call  the  whole  militia 
of  the  State  into  the  service  of  the  Confederacy,  to  direct  that 
the  President  should  appoint  (commission)  all  the  officers  of  the 
militia  thus  called  into  service,  under  the  general  language  con- 
tained in  the  previous  grant  of  power  to  raise  armies.  If  this 
can  be  done,  the  very  object  of  the  State  in  reserving  the  pow- 


11 

cr  of  appointing  the  officers  is  defeated,  and  that  portion  of  the 
Constitution  is  not  only  a  nullity,  bnt  the  whole  military  power 
of  the  States,  and  the  entire  control  of  the  militia,  with  the  ap- 
pointment of  the  officers,  is  rested  in  the  Confederate  Govern- 
ment, whenever  it  chooses  to  call  its  own  action  "raising  an  ar- 
my/'' and  not  "calling  forth  the  militia. "  Is  it  fair  to  conclude  that 
the  States  intended  that  their  reserved  powers  should  be  defeated 
in  a  matter  so  vital  to  constitutional  liberty,  by  a  mere  change 
in  the  use  of  terms  to  designate'  the  act  ?  Congress  shall  have 
(lower  to  raisi  armies,  llow  shall  it  be  done?  The  answer  is 
dear.  In  conformity  to  the  provisions  of  the  Constitution 
which  expressly  provides  that,  when  the  militia  of  the  States  are 
called  forth  to  repel  invasions^  and  employed  in  the  serviee  of  the 
Confederate  States,  (which  is  now  the  case.)  the  States  shall  ap- 
point the  officers.  If  this  is  done,  the  army  is  raised  as  directed 
by  the  Constitution,  and  the  reserved  rights  of  the  States  are 
respected;  but,  if  the  officers  of  the  militia,  when  called  forth, 
are  appointed  by  the  President,  the  army  composed  of  the  mili- 
tia is  not  raised  as  directed  by  the  Constitution,  and  the  reserved 
rights  of  the  States  are  disregarded.  The  fathers  of  the  Re- 
public in  1787,  showed  the  utmost  solicitude  on  this  very  point. 
In  the  discussions  in  the  Convention  upon  the  adoption  of  this  par- 
agraph in  the  Constitution  of  the  United  States,  which  we  have 
copied  and  adopted  without  alteration,  Mr.  Ellsworth  said: — 
"The  whole  authority  over  the  militia  ought  by  m>  means  to  be 
taken  away  from  the  States,  whose  consequence  would  pine 
away  to  nothing  after  such  a  sacrifice  of  power."  In  explana- 
tion of  the  power  which  the  committee,  who  reported  this  par- 
agraph to  the  Convention,  intended  by  it  to  delegate  to  the 
General  Government,  when  the  militia  should  he  employed  in 
the  sen  ice  of  that  Government,  Mr.  King,  a  member  of  the  com- 
mittee, said:  "By  organizing,  the  committee  meant  propor- 
tioning the  officers  ami  men;  by  arming,  specifying  the  kind, 
size  and  calibre  of  arms;  by  disciplining,  prescribing  the  man- 
ual exercise,  evolutions,  Are." 

Mr.  Gerry  objected  to  the  del*  >f  the  power,  even  with 

explanation,  and  said :  " This  power. in  the  United  State-, 
-  making  the  States  drill  aei  B 


12 

command  from  the  States,  and  subject  them  to  the  Genera)  Leg- 
islature." 

Mr.  Madison  observed,  thai  "arming,  as  explained,  <li<l  not 
extend  to  famishing  arms,  nor  the  term  disciplining  to  penal- 
ties and  courts  martial  lor  enforcing  tbenr." 

Alter  the  adoption  by  the  Convention  of  the  first  part  of  the 
clause,  Mr.  .Madison  moved  t<>  amend  the  next  part  of  ii.  so  as 
tejead<{  reserving  to  the  States  respectively  the  appointment 
of  the  officers,  tender  the  rank  of  general  qfiici  rs." 

Mr.  Sherman  considered  this  as  absolutely  inadmissible,  lie 
said  that  "if  the  people  should  be  so  far  asleep  as  to  allow  the 
most  influential  officers  of  the  militia  to  be  appointed  by  the 
General  Government,  every  man  o\'  discernment  would  rouse 
them  by  sounding  the  alarm  to  them." 

Upon  .Mr.  Madison's  proposition,  Mr.  Gerry  said:  "J 
once  destroy  the  State  Governments, have  an  Executive  for  life, 
or  hereditary,  and  a  proper  Senate,  and  then  there  would  be  some 
consistency  in  i;iv'mu- full  powers  to  the  General  Government; 
but  as  the  States  are  not  to  be  abolished,  he  wondered  at  the 
attempts  that  were  made  to  give  powers  inconsistent  with  then- 
existence,  lie  warned  the  Convention  against  pushing  the  ex- 
periment too  far.''' 

Mr.  Madison's  amendment  to  add  to  the  clause  the  words 
"und4ri?ie  rank  of  gerierah  ton  by  a  major- 

ity of  eight  State-  against  three,  according  to  the  "Ma 
Papers,"  from  which  the  above  extracts  are  taken  ;  arid  by  nine 
States  against  two,  according  <  to  the  printed  journals  of  the 
Convention.  The  reservation  in  the  form  in  which  it  now  stands 
in  the  Constitution,. "  reserving  to  the  States  the  appointment 
of  the  officers,"  when  the  militia  are  employed  in  the  service  of 
the  Confederacy,  as  well  the  general  officers  as  those  under  that 
grade,  was  then  adopted  unanimously  by  the  Convention. 

At  the  expense  of  wearying  your  patience,  J  have  been  thus 
careful  in  tracing  the  history  of  this  clause  of  the  Constitution, 
to  show  that  it  was  the  clear  understanding  of  those  who  origi- 
nated this  part  of  the  fundamental  law,  that  the  States  should 
retain  their  power  over  their  militia,  even  while  in  the  service  of 
the  Confederacy,  by  retaining  the  appointment  of  all  the  officers. 
In  practice,  the  Government  of  the   United  States,   anions 


13 

other  Numerous  encroachments  of  power,  had  usurped  to  itself 
the  power  which  the  Convention,  after  mature  deliberation,  had 
expressly  denied  to  it,  to  wit:  the  power  of  appointing  the 
general  officers  of  the  militia,   wheri  employed  in  the  service 

the  General  Government. 

But  even  that  Goyernmenl  had  never  attempted  to  go  to  the. 
extent  of  usurping  the  power  to  appoint  the  field  and  company 
Officers.  If  the  framers  of  the  Constitution  were  startled  at  the 
idea  of  giving  the  appointment  of  the  general  officers  to  the 
General  Government,  and  promptly  rejected  it,  how  would  they 
have  met  a  proposition  to  give  the  appointment  of  \u.  mi:  of- 
itji  EBB,  down  to  the  lowest  lieutenant,  to  it? 

But  you  say,  "with*  regard  to  the  mode  of  officering  the 
troops  no \*  called  into  the  service  of  the  Confederacy,  the  in- 
tention of  Congress  is  td  be  learned  from  its  acts;  and  from  the 
terms  employed  it  Would  seem  that  the  policy  of  election  by  the 
troops  themselves,  is  adopted  by  Congress." 

I  confess  I  had  not  bo  understood  it,  without,  very  essential 
qualification.  It  is  true,  the  twelve-months  men  who  re-enlist 
have  a  right,  within  forty  days,  to  re-orgaui/.e  and  elect  their 
offie' 

But  if  1  understand  the  act,  judging  from  the  urn-,-  used,  all 
oies  which  occur  in  the  old  regiments  are  to  be  tilled,  not 
by  election,  but  .by  the  Presides^  by  promotion,  down  to  the 
lowest  commissioned  officer,  whose  vacancy  alone  is  tilled  by 
election,  and  even  this  rule  ofcf  promotion  may  be  set  aside  by 
the  President  at  any  time,  under  circumstances  mentioned  in 
the  act,  and  he  may  appoint  any  one  he  pleases  to  till  the  vacan- 
cy, if,  in  his  opinion,  the  person  selected  is  distinguished  for 
skill  or  valor ;  and  the  commission  in  either,  and  all  tho  cases 
mentioned,  must  be  issued  by  the  President. 

Quite  a  number  of  Georgia  regiments  are  in  for  the  war, 
who-  -  hold  commissions  from  the  Executive  of  the  State; 

hut  even  in  these  regiments,  under  the  act,  every  person  ap 
pointed  to  till  any  vacancy  which  may  hereafter  occur,  must,  it 
would  seem,  hold  his  commission,  notfr  State,  but  from 

the  President. 

But  admit  t:  Intended  e  the 

e  right  t  93  •■  rs   (  which  has 


14 

not  been  the  established  practice,  aa  you  have  commissioned 
many  persons  to  command  as  field  officers  Without  election.) 
this  does  not  relieve  the  acts  of  Congress  from  the  charge  o& 
violation  of  the  Constitution.  The  question  is  not  as  to  the 
mode  of  selecting  the  person  who  is  to  have  the  commission, 
but  as  to  the  Government  which  has.  under  the  Constitution; 
the  right  to  issue  the  commission.  The  States,  in  the  exercise 
of  their  reserved  power  to  appoint  the  officers,  may  select  them 
by  election,  or  may  permit  the  Executive  t<>  select  them;  but 
the  appointment  rests  upon  the  commission,  as  there  is  no  com- 
plete appointment  till  the  commission  is  issued  ;  and,  therefore, 
the  Government  that  issues  the  commission  exercises  the  ap- 
pointing power,  and  controls  the  appointment. 

I  am  not,  however,  discussing  the  intention  of  Congress  in 
the  assumption  of  this  power,  but  only  the  question  of  its  pow- 
ers ;  and  whatever  may  have  been  its  intention,  I  maintain  that 
it  has  transcended  its  constitutional  powers,  and  has  placed  in 
the  hands  of  the  Executive  of  the  Confederacy  that  which  the 
States  have  expressly  and  carefully  denied  to  Congress  and  re- 
served to  themselves. 

But  you  may  ask,  why  hold  the  Executive  responsible  for  the 
unconstitutional  action  of  Congress  ?  I  would  not,  of  course,  in- 
sist on  this  any  further  than  the  action  of  Congress  has  been 
sanctioned  by  the  Executive,  and  acted  upon  by  him. 

Feeling  satisfied  that  the  Conscription  Act,  and  such  other 
acts  of  Congress  as  authorize  the  President  to  appoint  or  com- 
mission the  officers  of  the  militia  of  the  State,  when  employed 
in  the  service  of  the  Confederate  States  to  "  repel  invasion,"  are. 
in  palpable  violation  of  the  Constitution,  I  can  consent  to  do  no 
act  which  commits  Georgia  to  willing  acquiescence  in  their  bind- 
ing force  upon  her  people.  I  cannot,  therefore,  consent  to  have 
anything  to  do  with  the  enrollment  of  the  conscripts  in  this 
State ;  nor  can  I  permit  any  commissioned  officer  of  the  militia 
to  be  enrolled,  who  is  necessary  to  enable  the  State  to  exercise 
her  reserved  right  of  training  her  militia,  according  to  the  dis- 
cipline prescribed  by  Congress,  at  a  time  when  to  prevent  trou- 
bles with  her  slaves,  a  strict  military  police  is  absolutely  neces- 
sary to  the  safety  of  her  people.  Nor  can  I  permit  any  other 
officer,  civil  or  military,  who  is  necessary  to  the  maintenance  of 


15 

the  State  Government,  to  be  carried  out  of  the  State  as  a  con- 
script. 

Should  you  at  any  time  need  additional  troops  from  Georgia 
to  ijll  up  her  just  quota,  in  proportion  to  the  number  furnished 
l>y  the  other  States,  you  have  only  to  call  on  the  Executive  for 
the  number  required,  to  be  organized  and  officered  as  the  Con- 
stitution directs,  and  your  call  will,  as  it  ever  lias  done,  meet  a 
prompt  response  from  her  noble  and  patriotic  people,  who,  while 
they  will  watch  with  a  jealous  eye,  even  in  the  midst  of  revolu- 
tion, every  attempt  to  undermine  their  constitutional  rights,  will 
never  be  content  to  be  behind  the  foremost  in  the  discharge  of 
their  whole  duty.  1  am,  with  great  respect, 

Your  obedient  servant, 
JOSEPH  E.  BROWN. 


EXECUTIVE  DEPARTMENT,      ) 
Richmond,  May  29th,  1862-  J 

Dear  Sir:  I  received  your  letter  of  the  8th  inst.,  in  due  Course, 
but  the  importance  of  the  subject  embraced  in  it  required  care- 
ful consideration  ;  and  this,  together  with  other  pressing  duties, 
has  caused  delay  in  my  reply. 

The  constitutional  question  discussed  by  you  in  relation  to  the 
Conscription  Law  had  been  duly  weighed  before  I  recommended 
to  Congress  the  passage  of  such  a  law  ;  it  was  fully  debated,  in 
both  houses  ;  and  your  letter  has  not  only  been  submitted  to  my 
Cabinet,  but  a  written  opinion  has  been  required  from  the  At- 
torney-General. The  constitutionality  of  the  law  was  su>tained 
by  very  large  majorities  in  both  houses.  This  decision  of  the 
Congress  meets  the  concurrence,  not  only  of  my  own  judgment, 
but  of  every  member  of  the  Cabinet;  and  a  copy  of  the  opinion 
of  the  Attorney-General,  herewith  enclosed,  develops  the  rea- 
sons on  which  his  conclusion    ar 

I  propose,  however,  from  my  high  respect  for  yourself,  and 
for  other  eminent  citizens  who  entertain  opinions  similar  to 
jours,  to  set  forth,  somewhat  at  length,  my  own  views  on  the 
power  of  the  Confederate  Government  over  its  own  armies  and 


the  militia,  and  will  endeavor  not  to  leave  without  answer  any 
of  the  positions  maintained  in  your  letter. 

The  main,  if  not  the  only  purpose  for  which  indepen 
States  form  Unions  or  Confederations,  is  to  combine  the  power 
of  the  several  members  in  such  manner  as  to  form  one  united 
force  in  all  relations  with  foreign  powers,  whether  in  peace  or  in 
war.  Each  State  amply  competent  to  administer  and  controlits 
own  domestic  government,  yet, too  feeble  successfully  to  resist 
powerful  nations,  seeks  safety  by  uniting  with  other  States  in 
like  condition,  and  by  delegating  to  some  common  agent  the 
combined  strength  of  all,  in  order  t<»  secure  advai  com- 

mercial relations  in  peace   and  to  carry  on  hos 
in  war. 

Now,  the  powers  delegated  by  the  several  States  t<>  th<  Con- 
federate Government,  which  is  their  common  agent;  are  enume- 
rated in  the  8th  section  of  the  Constitution,  each  power  being 
distinct,  specific,  and  enumerated  in  paragraphs  separately  num- 
bered. The  only  exception  is  the  18th  paragraph,  which,  by  its 
own  terms,  is  made  dependent  on  those  previously  enumerated, 
as  follows: 

"18.  To  make  all  laws  which  shall  be  necessary  ami  proper 
lor  carrying  into  execution  the  foregoing  powers,"  &c. 

Now,  the  war  powers  granted  to  the  Congress  are  conferred 
in  the  following  paragraphs  : 

No.  1  gives  authority  to  raise  "revenue  necessary  to  pay  the 
debts,  provide  for  the  common  defence,  and  carry  on  the  gov- 
ernment," tfce. 

No.  11,  uto  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  Water  i'1 

No.  12,  "  to  raise  and  support  armies;  but  no  appropriation 
of  money  to  that  use  shall  be  for  a  longer  term  than  two  years!" 

No.  13,  "  to  provide  and  maintain  a  navy ;" 

No.  14,  "to  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces" 

It  is  impossible  to  imagine  a  more  broad,  ample  and  unquali- 
fied delegation  of  the  whole  war  power  o\'  each  State  than  is  hen- 
contained,  with  the  solitary  limitation  of  the  appropriations  to 
two  years.  The  States  not  only  gave  power  to  raise  money  for 
the  common  defence;  to  declare  war ;  to  raise  and   support   av- 


(in  the  plural)  ;  to  provide  and  maintain  a  navy  ;  to  govern 
and  regulate  both  land  and  naval  forces  ;  but  they  went  further, 
and  covenanted,  by  the  3d  paragraph  of  the  10th  section,  not 
"to  engage  in  war,  unless  actually  invaded,  or  in  such  imminent 
danger  as  will  not  admit  of  delay.*' 

1  know  of  but  two  modes  of  raising  armies  within  the  (  on 
federate  States,  viz  :  voluntary  enlistment,  and  draft  or  conscrfp 
tion.  I  perceive,  in  the  delegation  of  power  to  raise  armies,  n<> 
restriction  as  to  the  mode  of  procuring  troops.  I  see  nothing 
which  confines  Congress  to  one  class  of  men,  nor  any  greater  pow- 
er to  receive  volunteers  than  conscripts  Into  its  service.  I  see 
no  limitation  by  which  enlistments  are  to  be  received  of  indi- 
viduals only,  but  not  of  companies,  or  battalions,  or  squadrons,. 
or  regiments.  I  find  no  limitation  of  time  of  service,  but  only 
of  duration  of  appropriation.  I  discover  nothing  to  confine 
Congress  to  waging  war  within  the  limits  of  the  Confederacy, 
nor  to  prohibit  offensive  war.  In  a  word,  when  Congress  de- 
Bires  to  raise  an  army,  and  passes  a  law  for  that  purpose,  the 
solitary  question  is  under  the  I8th  paragraph,  viz:  "  Is  the  law 
one  that  is  necessary  and  proper  to  execute  the  power  to  raise 
armies,''  i&c? 

On  this  point  you  saj  :  '*  But  did  the  necessity  exist  in  tin* 
The  Conscription  Act  cannot  aid  the  Government  in  in- 
creasing the  supply  of  arms  or  provision*,  but  can  only  enable 
it  to  call  a  larger  number  of  men  into  the  field.  The  difficult) 
has  never  been  to  get  men.  The  States  have  already  furnished 
the  Government  more  than  it  can  arm,"  &c. 

1  Would  have  very  little  difficulty  in  establishing  to  your   en- 
r.isfacti'in  that  the  passage  o\'  the  law  was  not  only  iv 
nary,  but  that  it  was  absolutely  indispensable;   that   numerous 
regiments  of  twelve  months  men  were  on  the  eve  of  being  di* 
banded,  whose  places  could  not  be  supplied  by  new  levies  in  the 
face  of  superior  numbers  of  the  foe,  without  entailing  the  most. 
rous  results;  that  the  position  of  our  armies  was  BO  criti- 
cal as  to  fill  the  bosom  of  every  patriot,  with  the  liveliest  appre 
<n  ;  and  that  the  provisions  of  this  law    were   effective  iu 
warding  off  a  pressing  danger.      But  I  prefer  to   answer  yom 
objection  on  other  and  broader  ground*. 

I  hold,  that  when  a  specific  power  is  granted  by  the.Constitu 
! 


18 

tion,  like  that  now  in  question,  "to  raise  armies,"  Congress  is 
the  judge  whether  the  law  passed  for  the  purpose  of  executing 
that  power,  is  "  necessary  and  proper.''  It  is  not  enough  to  say 
that  armies  might  be  raised  in  other  ways,  and  that,  there- 
fore, this  particular  way  is  not  '•necessary/'  The  same  argu- 
ment might  be  used  against  every  mode  of  raising  armies.  To 
each. successive  mode  suggested,  the  objection  would  be  that 
other  modes  were  practicable,  and  that,  therefore,  the  particular 
mode  used  was  not  "necessary."  The  true  and  only  test  is  to 
enquire  whether  the  law  is  intended  and  calculated  to  carry  out 
the  object ■;  whether  it  devises  and  creates  an  instrumentality 
for  executing  the  specific  power  granted;  and  if  the  answer  be 
in  the  affirmative,  the  law  is  constitutional.  None  can  doubt 
that  the  Conscription  Law  is  calculated  and  intended  to  L- 
armies."  It  is,  therefore,  "necessary  and  proper"  for  the  exe- 
cution of  that  power,  and  is  constitutional,  unless  it  comes  into 
conflict  with  some  other  provision  of  our  Confederate  Compact. 

You  express  the  opinion  that,  this  conflict  exists,  and  support 
your  argument  by  the  citation  of  those  clauses  which  refer  to 
the  militia.  There  are  certain  provisions  not  cited  by  you,  which 
are  not  without  influence  on  my  judgment,  and  to  which  I  call 
your  attention.  They  will  aid  in  denning  what  is  meant,  by 
"militia,"  and  in  determining  the  respective  powers  of  the 
States  and  the  Confederacy  over  them. 

The  several  States  agree  "not  to  keep  troops  or  ships  of  war 
in  time  of  peace."     Art.  1,  sec  10,  par.  3. 

They  further  stipulate,  that  "a  well  regulated  militia  being 
necessary  to  the  security  of  a  tree  State,  the  right  of  the  people, 
to  keep  and  bear  arms  shall  not  be  infringed."      Sec.  9,  par.  13. 

That  "no  person  shall  be  held  to  answer  for  a  capital  or  oth- 
erwise infamous  crime,  uulcss  on  a  presentment  or  indictment 
of  a  grand  jury,  except  in  cases  arising  in  the  laud  or  naval 
forces,  or  in  the  militia  when  in  actual  service  in  time  of  war  or 
public  danger,"  &c.     Sec.  0,  par.  16. 

What  then  are  militia?    They  can  only  be  created  by  law. — 

The  arms-bearing  inhabitants  of  a  State  are  liable  to  become  its 

militia,  if  the  law  so  order;  but  in  the  absence  of  a  law  to  that 

,  the  men  of  a  State  capable  of  bearing  arms  are  no  more 

militia  than  they  are  seamen. 

The  Constitution  also  tells  ns  that  militi  t  troops^  nor 


1!) 

are  they  any  part  of  the  land  or  naval  forces  ;  for  militia  exist 
in  time  of  peace,  ami  the  Constitution  forbids  the  States  to  keep 
troops  in  time  of  peace,  and  they  are  expressly  distinguished 
ami  placed  in  a  separate  category  from  land  or  naval  forces,  in 
the  10th  paragraph,  above  quoted  ;  and  the  words  land  <■ 
vat  forces  are  shown,  by  paragraphs  12,  13  and  1  J,  to  mean  tin; 
army  and  navy  of  the  Confederate  States. 

Now,  if  militia  are  not  the  citizens  taken  singly,  but  a  body 
created  bylaw;  if  they  are  not  troops,  if  they  arc  no  part  of 
the  army  and  navy  of  the  Confederacy — we  arc  led  directly  to 
the  definition  quoted  by  the  Attorney  General,  that,  militia 
are  a  "body  of  soldiers  in  a  State  enrolled  for  discipline."  1:: 
other  words,  the  term  "  militia''  is  a  collective  term,  meaning 
a  body  of  men  organized,  and  cannot  be  applied  to  the  separate 
individuals  who  compose  the  organization. 

The  Constitution  divides  the  whole  military  strength  of  (he 
States  into  ohly  two  classes  of  organized  bodies — one,  the  armies 
of  the  Confederacy;  the  other,  the  militia  of  the.  States. 

In  the  delegation  of  power  to  the  Confederacy,  after  exhaust- 
ing the  subject  of  declaring  war,  raising  and  supporting  armies, 
and  providing  a  navy,  in  relation  to  all  which  the  grant,  ot' 
authority  to  Congress  is  exclusive,  the  Constitution  proceeds  to 
deal  with  the  other  organized  body,  the  militia,  and  instead  of 
delegating  power  to  Congress  alone,  or  reserving  it  to  the 
States  alone,  the  power  is  divided  as  follows,  viz:  Congress  is 
to  have  power — 

"To  provide  for  calling  forth  the  militia  to  execute  the  laws 
ot  the  Confederate  States,  suppress  insurrections,  ami  repel 
invasions."     Sec.  8.     Par.  15. 

"To    provide  for   organizing,    arming,    ami    disciplining  the 

militia,  and  for  governing  such  part  of  them  as  may  be  employed 

in  theservic-  of  the  Confederate  States;  reserving  to  the  States 

ittvely  thi    appointment  of  offi  <:<■.<•*  and  the  authority  of 

mg  the  militia  according  to  the  discipline  prescribed  by 

Congress."     Par.  10. 

CongresSj  then,  lias  the  power  to  p 
arms-bearing  people  of  the  Stai'  ilitia.     Eacl 

the  power  to  officer  and  train  them  win  n  organi 
laress  ma j  call  forth  the  militia  to  execute 


laws     The  State  has  not  surrendered  the  power  to  call  thorn 
forth  to  execute  StaU  laws. 

Congress  may  call  them  forth  to  repel  invasion  ;  so  may  the 
State,  for  it  lias  expressly  reserved  this  right. 

(  'ongress  may  call  them  forth  to  suppress  insurrection;  and 
so  may  the  stat< ,  t*<>r  the  power  is  impliedly  reserved  of  govern- 
ing all  the  militia  except  the  part  in  actual  service  of  the  Con- 
federacy. 

I  confess  myself  at  a  loss  to  perceive  in  what  manner  these 
careful  and  well  defined  provisions  of  the  Constitution  regulating 
the  organization  and  government  of  the  militia,  can  be  under- 
stood as  applying  in  the  remotest  degree  to  the  armies  of  the 
Confederacy ;  nor  can  I  conceive  how  the  grant  of  exclusive 
power  to  declare  and  carry  on  WW  by  armies  raised  and  sup- 
ported by  the  Confederacy,  is  to  be  restricted  or  diminished  by 
the  clauses  which  grant  a  divided  power  over  the  militia.  On 
the  contrary,  the  delegation  of  authority  over  the  militia,  so  far 
as  granted,  appears  to  me  to  be  plainly  an  additional  enume- 
rated power,  intended  to  strengthen  the  hands  of  the  Confed- 
erate Government  in  the  discharge  of  its  paramount  duty,  the 
common  defence  of  the  States. 

You  state,  after  quoting  the  12th,  15th,  and  16th  grants  of 
power  to  Congress,  that,  "These  grants  of  power  all  relate 
to  the  same  subject  matter,  and  are  all  contained  in  the  same 
section  of  the  Constitution,  and  by  a  well  known  rule  of  con- 
Kt ruction,  must  be  taken  as  a  whole,  and  construed  together." 

This  argument  appears  to  me  unsound. — All  the  powers  of 
Congress  are  enumerated  in  one  section;  and  the  three  para- 
graphs quoted  ean  no  more  control  each  other  by  reason  of  their 
location  in  the  same  section,  than  they  can  control  any  of  the  • 
other  paragraphs  preceding,  intervening,  or  succeeding.  So  far 
as  the  subject  matter  is  concerned,  I  have  already  endeavored  to 
show  that  the  armies  mentioned  in  the  12th  paragraph  are  a 
subject  matter  as  distinct  from  the  militia  mentioned  iu  the  15th 
a.nd  16th,  as  they  are  from  the  navy  mentioned  in  the  13th. 
Nothing  can  so  mislead  as  to  construe  together  and  as  a  wholes 
the  carefully  separated  clauses  which  define  the  different  powers 
to  be  exercised  over  distinct  subjects  by  the  Congress.  But,  you 
add,   that,  "  by  the  gram  of  power  to.  Congress  to  raise  and 


'1 1 

support  armies,  without  qualification,  the  framers  of  the  < 
tution  intended  the  regular  armies  of  the  Confederacy,  and  not 
armies  composed  of  the  whole  militia  of  all  the  States." 

1  must  confess  myself  somewhat  at  a  loss  to  Understand  this 
position;     If  I  am  right, .that   the  militia  is  a  body  of  enrolled 
State  soldiers,  it   is  not  possible,  in  the  nature  of  things,  that 
armies   raised   by  the  Confederacy    can  "be   composed    of  tho 
whole  militia  of  all  the  States."     The  militia  may  be  called  fc 
in  whole,  or  in  part,   into  the   Confederate   service,    hut    do  not 
therehy  become  part   of  the  "Armies  raised"  by  Congress. — 
They  remain  militia,  and  go  home  when  the  emergency  which 
provoked  their  call  has  ceased.     Armies  raised  by  Congress   li  • 
of  course  raised  out  of  the  same  population  as  the  militia  organ- 
ized by  the  States  ;  and  to  deny  to  Congress  the  power  to  draft 
a  citizen  into  the  army,  or  to  receive   his  voluntary  offer  of  ser- 
vices because  he  is  a  member  of  the  State  militia,  i<  to  deny 
the  power   to   raise   an  army  at   all;   for,  practically,  all  men   (it 
for  service   in  the  army  may  he   embraced  in   the  militia  organ- 
izations Of  the  several  Stales.     You  seem,  however,  to  sugg 
rather   than   directly    to  assert,   that    tie-   I  onscript    law  may 
be    unconstitutional,    because    it    comprehends    all    arms-bear- 
ing men   hetween    18   and   35  years:  at  least   iliis  is    an  infer- 
ence which  I   draw    from  your  expression,  '■•armies  com! 
of  the   />•/,,>/<■  militia    of  <///  the   States. M       But    it     i>    obvious, 
that    it    Congress    have   power  to  draft  into   the  armies  raised 
by  it  any  citizens  at  all  (without  regard  to  the  fact   whether 
they  are  or  not  members  of  militia  organizations,)  the  power 
must   he  co-extensive  with  the  exigencies  of  the  occasion,  or 
it  becomes   illusory;  and  the   extent  o!   the  exigency  musl   be 
determined  hy  Congress  ;  for  the  Constitution  has  left  the  power 
without  any  other  check  or  restriction  than  (he  Executive  veto. 
Under  ordinary  circumstances,  the  power  thus  delegated  to< 
<_rre>s   is   scarcely  felt   hy  the   States.      At   the    present  moment 
when  our  very  existence  is  threatened,  hy  armies  vastly  sip 
in  numbers  to  ours,  the  necessity  for  defence  has  induced  a 
not  "  for  the  whole  militia  of  all  the  Stales,"  not  tor  any  militia, 

but  for  men  to  compose  armies  for  the  Confederate  Si 

Sureiv,  there  is  no  mystery  on  this  subject.     1  taring  our  whole 
past  history,  as  well  us  during  ou  '   ul   one  year's 


22 

as  a  new  Confederacy,  the  militia  "have  been  called  forth  to 
repel  invasion"  in  numerous  instances:  and  they  never  came 
otherwise  than  as  bodies  organized  by  the  States,  with  their 
company,  field,  and  general  officers  :  and  when  the  emergency 
had  passed,  they  went  home  again. 

I  cannot  perceive  how  anyone  can  interpret  the  Conscription 
Law  as  taking  away  from  the  States  the  power  to  appoint 
officers  to  their  militia.  You  observe  on  this  point  in  your  let- 
ter, that  unless  your  construction  is  adopted,  "the  very  object 
of  the  States  in  reserving  the  power  of  appointing  the  officers, 
is  defeated,  and  that  portion  of  the  Constitution  is  not  only  a 
nullity,  but  the  whole  military  power  of  the  States,  and  the 
entire  control  of  the  militia,  with  the  appointment  of  the  officers, 
is  vested  in  the  Confederate  Government,  whenever  it  chooses  to 
call  its  own  action  '  raising  an  army,'  and  not  calling  forth  the 
militia." 

I  can  only  say,  in  reply  to  this,  that  the  power  of  Congress 
depends  on  the  real  nature  of  the  act  it  proposes  to  perform,  not 
on  the  name  given  to  it;  and  I  have  endeavored  to  show  that  its 
action  is  merely  that  of  "  raising  an  army,"  and  bears  no  sem- 
blance to  "  calling  forth  the  militia."  I  think  I  may  safely  ven- 
ture the  assertion,  that  there  is  not  one  man  out  of  a  thousand 
of  those  who  will  do  service  under  the  Conscription  .Vet  that 
would  describe  himself,  while  in  the  Confederate  service,  as 
being  a  militia  man;  and  if  I  am  right  in  this  assumption,  the 
popular  understanding  concurs  entirely  with  my  own  deduc- 
tions from  the  Constitution  as  to  the  meaning  of  the  word  "  mil- 
itia." 

My  answer  has  grown  to  such  a  length  that  I  must  confine 
myself  to  one  more  quotation  from  your  letter.  You  proceed  : 
"Congress  shall  have  power  to  raise  armies.  Mow  shall  it  be 
done  ?  The  answer  is  clear.  In  conformity  to  the  provisions  of 
the  Constitution,  which  expressly  provides  that  when  the  militia 
of  the  States  are  called  forth  to  repel  invasion,  and  employed 
in  the  service  of  the  Confederate  States,  which  is  now  the  ease, 
the  State  shall  appoint- the  officers." 

I  beg  you  to  observe  that  the  answer  which  you  say  is  clear, 
is  not  an  answer  to  the  question  put.  The  question  is :  How 
are  armies  to  be  raised?     The  answer  given  is,  that  when  militia 


23 

are  culled  forth  to  repel  invasion,  the  State  shall  appoint  the 
officers. 

There  seems  tome  to  be  a  conclusive  te>t  on  this  whole  sub- 
ject. By  our  Constitution  Congress  may  declare  war,  offensive 
as  well  as  defensive.  It  may  acquire  territory. — Xow,  suppose 
that  for  good  cause,  and  to  right  unprovoked  injuries,  Congress 
(should  declare  Avar  against  Mexico,  and  invade  Sonora.  The 
militia  could  not  be  called  forth  in  such  a  case,  the  right  to  call 
it  being  limited  "to  repel  invasions.''  Is  it  Dot  plain  that  the 
law  now  under  discussion,  if  passed  under  such  circumstances, 
could  by  no  possibility  be  aught  else  than  a  law  to  "  raise  an 
army  ?"  Can  one  and  the  same  law  be  construed  into  a  "  calling 
forth  the  militia,"  if  the  war  be  defensive,  and  a  "  raising  of 
armies,""  if  the  war  be  offensive  ? 

At  some  future  day,  after  our  independence  shall  have  been 
established,  it  is  no  improbable  supposition  that  our  present 
enemy  may  be  tempted  to  abuse  his  naval  power,  by  depredation 
on  our  commerce,  and  that  we  may  be  compelled  to  assert  oiir 
rights  by  offensive  war.  How  is  it  to  be  carried  on  ?  Of  what 
is  the  army  to  be  composed'?  If  this  Government  cannot  call 
on  its  arms-bearing  population  otherwise  than  as  militia,  and  if 
the  militia  can  only  be  called  forth  to  repel  invasion,  we  should 
be  utterly  helpless  to  vindicate  our  honor  or  protect  our  rights. 
War  has  been  well  styled  "the  terrible  litigation  of  nations." 
Have  we  so  formed  our  Government,  that  in  this  litigation  we 
never  be  plaintiff?  Surely  this  cannot  have  been  the  inten- 
tion of  the  framers  of  our  compact. 

In  no  aspect  in  which  I  can  view  this  law,  can  I  find  just  rea- 
son to  distrust  the  propriety  vl'  my  action  in  approving  and 
signing  it  ;  and  the  question  presented  involves  consequences, 
both  immediate  and  remote,  too  momentous  to  permit  me  to 
leave  your  objections  unanswered. 

In  conclusion,  I  take  great  pleasure  in  recognizing  that  the 
history  of  the  past  year  affords  the  amplest  justification  for  your 
assertion,  that  if  the  question  had  been,  whether  the  Conscription 
Law  was  necessary  in  orderto  raise  men  in  Georgia,  the  answer 

have  been  in  the  negative.  Your  noble  State  has  promptly 
responded  to  every  call  that  it  ha-  been  my  duty  to  make  on 
her;  and  to  you,  personally,  as   her   Executive,  I  acknowledge 


24 

adebteduess  for  the  prompt,  cordial,  and  effective  co-opera- 
tion you  have  afforded  Die  in  the  effort  to  defend  our  common 
country  against  the  common  enemy. 
I  am,  very  respectfully, 

Your  ohedicnt  servant,    ■ 

JEFFERSON  DAVIS, 
ilis  Excellency  Jos.  E.  Brown, 

Governor  of  Georgia, 

Milledgeville. 


Atlanta,  June  21st,  1862. 
His  Excellency  Jeferson  Davis,  President,  <{•". 

Dear  Sir: — I  have  the  honor  to  acknowledge  the  receipt  of 
your  letter  of  the  20th  ult.,  in  reply  to  mine  of  the  8th  of  the 
game  month,  which  reached  my  office,  at  jlilledgeville,  on  the 
8th  instil,  together  with  a  copy  of  the  written  opinion  of  the 
Attorney  General,  and  has  since  heeu  forwarded  to  me  at  Can- 
ton, where  I  was  detained  by  family  affliction. 

Your  reply,  prepared  after  mature  deliberation  and  consulta- 
tion with  a  Cabinet  of  distinguished  ability,  who  concur  in  your 
view  of  the  constitutionality  of  the  Conscription  Act,  doubtless 
presents  the  very  strongest  argument  in  defence  of  the  Act,  of 
which  the  case  is  susceptible. 

Entertaining,  as  I  do,  the  highest  respect  for  your  opinions 
and  those  of  each  individual  member  of  your  Cabinet,  it  is  with 
greai  diffidence  that  I  express  the  conviction,  which  I  still  enter- 
tain, after  a  careful  perusal  of  your  letter,  that  your  argument 
fails  to  sustain  the  constitutionality  of  the  Act  ;  and  that  the 
conclusion  at  which  you  have  arrived  is  maintained  by  neither 
the  contemporaneous  construction  put  upon  the  Constitution  by 
those  who  made  it,  nor  by  the  practice  of  the  United  States 
Government,  under  it,  during  the  earlier  and  better  days  of  the 
Republic,  nor  by  the  language  of  the  instrument  itself,  taking 
the  whole  context,  and  applying  to  it  the  well  established  rules 
by  which  all  constitutions  and  laws  are  to  be  construed. 

Looking  to  the  magnitude  of  the  rights  involved,  and  the  dis- 
astrous consequences  which,  I  fear,  must  follow  what  1  consider 


a  bold  ami  dangerous  usurpation 'by  Coi  erved 

rights  of  the  States,  and  a  rapid  stride  towards  military  d< 
ism,  1  very  much  regret  that  I  have  not,  in  the  preparation  oi' 
this  reply,  the  advice  and  assistance  of  a  number  equal  to  your 
Cabinet,  of  the  many  "eminent  citizens"  who,  you  admit,  enter- 
tain with  me,  the  opinion  that  the  Conscription  Act  is  a  palpable 
violation  of  the  Constitution  of  the  Confederacy.  Withoutthis 
assistance,  however,  I  must  proceed  individually  to  expree 
you  some  views,  in  addition  to  those  contained  in  my  former 
letters,  and  to  reply  to  such  points  made  by  you  in  the  argument, 
as  seem  to  my  mind  to  have  the  most  plausibility  in  sustaining 
your  conclusion. 

The  Sovereignty  and  independence  of  each  one  of  the  thirl 
States  at  the  time  of  the  adoption  of  the  Constitution  of  the 
United  States,  will  not,  I  presnme,  be  denied  by  any,  nor  will  it 
be  denied  that  each  of  these  States  acted  in  it-  separate  capacity, 
as  an  independent  sovereign,  in  the  adoption  of  the  Constitution, 
The  Constitution  is,  therefore,  a  League  between  sovereigns.  In 
order  to  place  upon  it  a  just  construction,  we  must  apply  to  it 
the  rules,  which,  by  common  consent,  govern  in  the  construc- 
tion of  all  written  constitutions  and  laws.  One  of  the  first  of 
these  rules  i<.  to  inquire  what  was  the  intention  of  those  who 
made  the  constitution. 

To  enable  us  to  learn  this  intention,  it  is  important  to  inquire 
what  they  did,  and  what  they  said  they  meant,  when  they  were 
making  it.  In  other  words,  to  inquire  for  the  contemporaneous 
construction  put  upon  the  instrument  by  those  who  made  it,  and 
the  explanations  of  its  meaning  by  those  who  proposed  each 
part  in  the  Convention,  which  induced  the  Convention  to  adopt 
each  part. 

I  incorporated  into  my  last  letter  a  number  of  quotations  from 
the  debates  of  prominenl  members  of  the  Convention  upon  the 
very  point  in  question,  showiag  thai  it  was  not  the  intern i 
the  Convention  to  give  to  Congress  the  unlimited  control  of  all 
the  men  able  to  bear  arms    in   the  States,  but    that    i: 
intention  to  reserve  to  the  States  the  control  over  l 
composed  their  militia,  by  retaining  to  th«>  States  the  ap, 
ment  of  the  officers   to  command   them,  even  while  "  emi 
'm  the  service  of  the  <  -  "     I   might  add 


26 

other  quotations  containing  Rtrong  proofs  of  this  position,  from 
the  debates  of  the  Federal  Convention,  and  the  action  of  the 
State  Conventions  which  adopted  the  Constitution  ;  but  I  deem 
t  unnecessary,  as  you  made  no  allusion  to  the  contemporaneous 
construction  in  your  reply,  and  I  presume  you  do  not  insist  that 
the  explanations  of  its  meaning  given  by  those  who  made  it 
sustain  your  conclusion. 

I  feel  that  I  am  fully  justified  by  the  debates  ami  the  action  of 
the  Federal  and  State  Conventions,  in  saying  that  it  was  the 
Intention  of  the  thirteen  sovereigns,  to  constitute  a  common 
agent  with  certain  specific  and  limited  powers,  to  be  exercised 
for  the  good  of  all  the  principals,  but  that  it  was  not  the  inten- 
tion to  give  the  agent  the  power  to  destroy  the  principals. 
The  agent  was  expected  to  be  rather  the  servant  of  several  mas- 
ters, than  the  master  of  several  servants.  I  apprehend  it  was 
never  imagined  that  the  time  would  come  when  the  agent  of  the 
sovereigns  would  claim  the  power,  to  take  from  each  sovereign 
every  man  belonging  to  each,  able  to  bear  arms,  and  leave  them 
with  no  power  to  execute  their  own  laws,  suppress  insurrections 
in  their  midst,  or  repel  invasions. 

In  reference  to  the  practice  of  the  United  States  Government 
under  the  Constitution,  I  need  only  remark,  that  I  do  not  pre- 
sume it  will  be  contended  that  Congress  claimed  or  exercised 
the  right  to  compel  persons  constituting  the  militia  of  the  States, 
by  conscription  or  compulsion,  to  enter  the  service  of  the  Gen- 
eral Government,  without  the  consent  of  their  State  Govern- 
ment, at  any  time  while  the  Government  Mas  administered,  or 
its  councils  controlled,  by  any  of  the  fathers  of  the  Republic  who 
aided  in  the  formation  of  the  Constitution. 

If,  then,  the  constitutionality  of  the  Conscription  Act  cannot 
be  established  by  the  contemporaneous  construction  of  the  Con- 
stitution, nor  by  the  earlier  practice  of  the  Government  while 
administered  by  those  who  made  the  Constitution,  the  remaining 
inquiry  is,  can  it  be  established  by  the  language  of  the  instru- 
ment itself,  taking  the  whole  context,  and  applying  to  it  the  usual 
rules  of  construction,  which  were  generally  received  and  admit- 
ted to  be  authoritative  at  the  time  it  was  made. 

The  Constitution,  in  express  language,  gives  Congress  the 
power  to  "raise  and  support  armies. "'     You  rest  the  case  here, 


27 

and  Kay  you  know  of  but  two  modes  of  '  raising  armies,"  to 
wit :  "  by  voluntary  enlistment,  and  by  draft  or  conscription," 
and  you  conclude  that  the  Constitution  authorizes  Congress  to 
raise  them  by  either  or  both  these  modes. 

To  enable  us  to  arrive  at  an  intelligent  conclusion  as  to  the 
meaning  intended  to  be  conveyed  by  those  who  used  this  lan- 
guage, it  ie  necessary  to  inquire  what  signification  was  attached 
to  the  terms  used,  at  the  time  they  were  used  ;  and  it  is  fair  to 
infer  that  those  who  used  them  intended  to  convey  to  the  minds 
of  others  the  idea  which  was  at  that  time  usually  conveyed  by 
the  language  adopted  by  them.  Apply  this  rule,  and  what,  did 
the  Convention  mean  by  the  term  "  to  raise  armies?"  1  prefer 
that  the  Attorney  General  should  answer.  He  says  in  his  writ- 
ten opinion: 

"Inasmuch  as  the  words  '  militia,'  '  armies,'  'regular  troops,' 
and  'volunteers,'  had  acquired  a  detinite  meaning  in  Great  Brit- 
ain before  the  Revolutionary  war,  and  as  we  have  derived  most 
of  our  ideas  on  this  subject  from  that  source,  we  may  safely 
conclude  that  the  term  '  militia,'  in  our  Constitution,  was  used 
in  the  sense  attached  to  it  in  that  country." 

Upon  this  statement  of  the  Attorney  General  rests  his  definition 
of  the  term  "militia/'  which  is  an  English  definition  ;  and  upon 
that  definition  rests  all  that  part  of  your  argument,  which  draws 
a  distinction,  however  unsubstantial,  between  calling  forth  tho 
militia  by  authority  of  Congress,  and  calling  forth  all  men  in 
the  State  who  compose  the  militia  by  the  same  authority.  In 
the  one  case,  you  term  it  railing  forth  the  militia,  and  admit  that 
the  State  has  the  right  to  appoint  the  officers:  in  the  other  case 
while  every  man  called  forth  may  be  the  same,  you  term  it 
ing  an  army,  and  deny  to  the  State  the  appointment  of  the 
officers.  As  this  is  necessary  to  sustain  the  constitutionality  of 
the  Conscription  Act,  you  cannot  disapprove  the  statement  of 
the  Attorney  General  above  quoted.  If.  then,  the  Attorney 
General  is  right,  that  the  terms  "  militia,"  M  armies,"  regular 
troops,''  and  u volunteers"  had  acquired  a  detinite  meaning  in 
Great  Britain  before  the  Revolutionary  war,  and  we  have  derived 
<>f  our  ideas  on  this  subject  from  that  BOUroO,  and  if  we 
may  -  elude  that  the  term  "  militia"'  in  our  Constitution 

was  used  in  the  sense  attached  to  it  in  that  country,  is  it  not 


28 

equally  safe  to  conclude  thai  the  terms  "armies/1  and  to  "  raise 
armies.''  having  acquired  a  definite  meaning  in  Great  Britain 
before  the  Revolutionary  war,  were  used  in  our  Constitution  in 
the  same  sense  attached  to  them  in  that  country? 

At  that  period,  the  Government  of  Great  Britain  had  no, 
Conscription  Act,  and  did  not  "  raise  armies"  by  conscription , 
therefore  the  Convention  which  made  our  Constitution,  "having 
derived  most  of  their  ideas  on  this  subject  from  that  source,"  it 
is  "safe  to  conclude"  that  they  used  the  term  to  "'raise  armies 
in  the  sense  attached  to  it  in  that  country."  It  necessarily  fol- 
lows, the  Attorney  General  being  the  judge,  that  your  conclu- 
tion  is  erroneous,  and  that  Congress  has.no  power  to  "raise 
armies,"  not  even  her  "  regular  armies,"  by  conscription. 

But,  as  those  who  framed  the  Constitution  foresaw  that  Con- 
gress might  not  be  able  by  voluntary  enlistment,  to  raise  regu- 
lar or  standing  armies  sufficiently  large  to  meet  all  emergencies, 
or  that  the  people  might  refuse  to  vote  supplies  to  maintain  in 
the  field  armies  so  large  and  dangerous,  they  wisely  provided, 
in  connection  with  this  grant  of  power,  another  relating  to  the 
same  subject-matter,  and  gave  Congress  the  additional  power 
to  call  forth  the  militia  to  execute  the  laws  of  the  Confederate 
States,  suppress  insurrections,  and  repel  invasions. 

In  this  connection,  1  am  reminded  by  your  letter,  that  Con- 
gress has  power  "to  declare  war,"  which  you  say  embraces 
the  right  to  declare  offensive  as  well  as  defensive  war  ;  and  you 
argue,  as  I  understand,  that  the  militia  can  only  be  called  forth 
to  repel  invasions,  and  not  to- invade  a  foreign  power,  and  that 
Congress  would  be  powerless  to  redress  our  wrongs,  or  vindi- 
cate our  honor,  if  it  could  not  "raise  armies"  by  conscription, 
to  invade  foreign  powers.  If  this  were  even  so,  it  might  be  an 
objection  to  the  Constitutional  Government,  for  want  of  suffi- 
cient strength,  which  is  an  objection  often  made  by  those  who 
faVor  more  absolute  power  in  the  General  Government,  and 
who  attempt,  by  a  latitudinarian  construction  of  the  Constitu- 
tion, to  supply:  powers  which  were  never  intended  to  be  given 
to  it.  But  does  the  practical  difficulty  which  you  suggest,  in 
fact  exist  ?  I  maintain  that  it  does  not.  And  I  may  hero 
remark,  that  those  who  established  the  Government  of  our 
fathers,  did  not  look  to  it,  as  a  great  military  power,   whose 


people  were  to    live  by  plundering   other  nations   in    foreign 
aggressive  war,  but  as  a  peaceful  Government,  advised  by  the 
Father  of  his  Country,  t<>    avoid  ''entangling  alliances"  with 
ign  powers. 

But  you  suppose,  alter  our  independence  is  established,  that 
our  present  enemy  may  be  tempted  to  abuse  his  naval  power, 
by  depredation  on  our  commerce*  and  that  we  maybe  compelled 
to  assert  our  rights  by  offensive  war,  and  you  ask,  "How  is  it. 
to  be  carried  on?"  "Qf  what  is  the  army  to  be  composed?1' 
The  answer  is  a  very  simple  one.  If  the  aggression  is  such  as 
to  justify  ux  in  the  declaration  of  offensive  war,  our  people  will 
have  the  intelligence  to  know  it,  and  the  patriotism  and  valor  to 
prompt  them  to  respond  by  voluntary  enlistment,  and  to  offer 
themselves  under  officers  of  their  own  choice,  through  their 
State  authorities,  to  the  Confederacy,  just  as  they  did  in  the 
offensive  war  against  Mexico,  when  many  more  were  offered 
than  were  needed,  without  conscription  <>r  coercion;  and  just 
as  they  have  done  in  our  present  defensive  war,  when  almost 
every  State  has  responded  to  every  call,  by  sending  larger  num- 
bers than  were  called  for,  and  larger  than  the  Government  can 
arm  and  make  effective.  There  is  no  danger  that  the  honor  of 
the  intelligent  freeborn  citizens  of  this  Confederacy  will  ever 
suffer  because  the  Government  has  not  the  power  to  compel- 
them  to  vindicate  it.  They  will  hold  the  Government  responsi- 
ble if  it  refuses  to  permit  them  to  do  it.  To  doubt  this,  would 
seem  to  be,  to  doubt  the  intelligence  and  patriotism  of  the  peo- 
ple, and  their  competency  for  self-government. 

It  would  be  very  dangerous,  indeed  to  give  the  General  Gov- 
ernment the  power  to  engage  in  an  offensive  foreign  war,  the 
justice  of  which  Mas  condemned  by  the  Governments  of  tin- 
States,  and  the  intelligence  of  the  people,  and  to  compel  thou 
to  prosecute  it  for  two  years,  the  term  for  which  appropriation- 
can  be  made  and  continued  l»y  the  Congress  declaring  it.  I  lei:.  « 
the  wisdom  of  our  ancestors  in  limiting  the  power  of  Congress 
<>\i  r  the  militia,  or  great  body  of  our  people,  »,,  ;is  to  prohibit 
the  prosecution,  by  conscription  <>r  coercioji^  of  an  offensive 
foreign  war,  which  may  be  condemned  by  an  intelligent  public 
opinion. 

France  has  a  oonftcriptioi  Britain  ha*  not. 


30 

Both  are  warlike  powers,  often  engaged  in  foreign  offensive  wars. 
What  advantage  has  the  conscription  law  given  to  France  over 
Great  Britain  ?  Has  not  the  latter  been  as  able  as  the  former 
to  "  raise  armies"  sufficient  to  vindicate  her  honor  and  maintain 
her  rights  ?  When  Franco  had  no  conscription  law  at  one 
period  of  her  history,  she  was  a  Republic.  Soon  after  she  had 
a  conscription  law,  she  became  an  Empire,  and  her  ruler  an 
Emperor,  leaving  her  people  without  the  constitutional  safe- 
guards which  protect  the  people  of  Great  Britain. 

But  you  ask,  "  Shall  we  never  be  plaintiff  iu  this  '  terrible 
litigation  of  nations '?' "  If  the  litigation  commends  itself  to 
the  intelligence  of  the  people  as  just,  they  will  not  hesitate  to 
put  themselves  at  the  command  of  the  Government  to  assume 
the  plaintiff's  position.  The  eagerness  with  which  the  people 
of  the  Confederacy  now  desire  that  we  assume  the  plaintiff's 
position,  and  become  the  attacking  and  invading  party,  instead 
of  acting  constantly  upon  the  defensive,  is  evidence  to  sustain 
my  conclusion  on  this  point. 

That  those  who  framed  the  Constitution  looked  to  a  state  of 
war  as  tending  to  concentrate  the  power  in  the  Executive,  and 
as  unfavorable  to  constitutional  liberty,  and  did  not  intend  to 
encourage  it,  unless  in  cases  of  absolute  necessity,  and  did  not, 
therefore,  form  the  Government  with  a  view  to  its  becoming  a 
power  often  engaged  in  offensive  Avar,  may  be  inferred  from 
the  language  of  Mr.  Madison.     He  says: 

"  War,  is,  in  fact,  the  true  nurse  of  Executive  aggrandize- 
ment. In  war  a  physical  force  is  to  be  created,  and  it  is  the 
Executive  will  which  is  to  direct  it.  In  war  the  public  trea- 
sures are  to  be  unlocked,  and  it  is  the  Executive  hand  which  is 
to  dispense  them.  In  war,  the  honors  and  emoluments  of  office 
are  to  be  multiplied,  and  it  is  the  Executive  patronage  under 
which  they  are  to  be  enjoyed.  It  is  in  war,  finally,  that  laurels 
are  to  be  gathered,  and  it  is  the  Executive  brow  they  are  to 
encircle.  The  strongest  passions  and  most  dangerous  weak- 
nesses of  the  human  breast — ambition,  avarice,  vanity,  the  hou- 
orable  or  venial  love  of  fame,  are  all  in  conspiracy  against  the 
and  duty  of  peace."  See  Federalist,  page  452. 
In  connection  with  this  remark  of  Mr.  Madison,  it  may  not 
be  amiss  to  add  one  from  Mr.  Calhorfri.     Ttrat  great  and  good 


31 

man  who  may  justly  be  styled  the  champion  of  State  Rights 
and  Constitutional  Libert;/,  in  the  first  volume  of  his  works, 
page  301,  while  speaking  of  the  war  which  was  forced  upon  Mr. 
Madison  while  President,  by  Great  Britain,  says: 

"It  did  more;  tor  the  war,  however  just  and  necessary, 
a  strong  impulse  adverse  to  the  Federal  and  favorable  to  the 
national  line  of  policy.  This  is,  indeed,  viw  of  the  unavoidable. 
consequences  of  war,  and  can  be  counteracted  only  by  briuging 
into  full  action  the  negatives  necessary  to  the  protection  of  the 
reserve  dpaieers.  These  would,  of  themselves,  have  the  effect  of 
preventing  wars,  so  long  as  they  could  be  honorably  and  safely 
avoided.;  and  when  necessary.  o\'  arresting,  to  a  great  extent, 
the  tendency  of  t/<>-  Government  to  transcend  the  limits  of  the 
Constitution  during  its  prosecution,  and  of  correcting  all  de- 
partures alter  its  termination.  It  was  by  force  of  the  tribunitial 
power  that  the  plebeians  retaiuedfor  so  long  a  period  their  liber- 
ty in  the  midst  of  SQ  many  war-." 

1  beg  to  call  special  attention  to  the  portions  o\'  the  above 
quotation  which  I  have  italicised. 

Having  rested  the  constitutionality  of' the  Conscription  .V' 
upon  the  power  given  to  Congress  to  "raise  armies,"  you  enun- 
ciate a  doctrine  which  I  must  be  pardoned  for  saying,  struck  me 
with  surprise;  not  that  the  doctrine  was  new,  for  it  was  firsl 
proclaimed,  I  believe,  almost  as  strongly,  by  Mr.  Hamilton  in 
the  Federalist,  but  because  it  found  an  advocate  in  you,  whom 
I  had  for  many  years  regarded  as  one  of  the  ablest  and  boldest 
defender^  of  the  doctrines  of  the  State  Rights  school,  in  th 
government.     Your  language  is  : 

"  I  hold  that  when  a  specific  power  is  granted  by  the  Consti- 
tution, like  that  now  in  question,  to  •  raise  armies,'  Congress  is 
the  judge  whether  the  law  passed  for  the  purpose  of  executing 
that  power.  is  accessary  and  proper." 

Again  you  say : 

"The  true  and  only  test  is.  to  enquire  whether  the  law   : 
tended  and  calculated  to  carry  out  the  object,    whether  it  devi- 
Bes   and   creates    an   instrumentality    for   executin  • 
power  granted,  and  if  I  '     . 

is  constitutional." 


From  this  you  argue  that  the  Conscription  Act   is  calculated 

and  intended  to  "raise  armies,"'  and,  therefore,  constitutional. 

I  am  not  aware  that  the  proposition  -was  ever  -stated  more 
broadly  in  favor  of  unrestrained  Congressional  power,  by  Web- 
ster, Story,  or  any  other  statesman  or  jurist  of  the  Federal 
school. 

This  is  certainly  not  the  doctrine  of  the  republican  party  of 
1798,  asset  forth  in  the  Virginia  and  Kentucky  Resolutions. 
The  Virginia  Resolutions  use  the  following  language,  that,  "  It 
(the  General  Assembly  of  Virginia,)  views  the  powers  of  the 
Federal  Government  as  resulting  from  the  compact  to  which 
the  States  are  parties,  as  limited  by  the  plain  sense  and  inten- 
sion of  the  instrument  constituting  that  compact,  as  no  further 
valid  than  they  are  authorized  by  the  grants  enumerated  in  that 
compact;  and  that  in  the  case  of  a  deliberate,  palpable  and  daii- 
geroas  exercise  of  other  powers  not  granted  by  said  compact, 
the  States  who  are  parties  thereto,  have  the  right  and  are  in  du- 
ty bound  to  interpose  for  arresting  the  progress  of  the  evil, 
and  for  maintaining  within  their  respective  limits  the  authori- 
ties, rights  and  liberties  appertaining  to  them.  That  the  Gene- 
ral Assembly  doth  also  express  its  deep  regret,  that  a  spirit  has 
in  sundry  instances  been  manifested  by  the  Federal  Government, 
to  enlarge  its  powers  by  a  forced  construction  of  the  Constitu- 
tional charter  which  defines  them;  and  that  indications  have 
appeared  of  a  design  to  expound  certain  general  phrases—* 
(which  having  been  copied  from  the  very  limited  grant  of  pow- 
ers in  theformer  articles  of  Confederation  were  the  less  liable 
to  be  misconstrued) — so  as  to  destroy  the  meaning  and  effect  of 
the  particular  enumeration,  which  necessarily  explains  and  lim- 
its the  general  phrases,  so  as  to  consolidate  the  States  by  degrees 
into  '""  sovereignty,  the  obvious  tendency  and-inevitable  result 
of  which  would  be  to  transform  the  present  Republican  .system 
at'  the  United  States,  into  an  absolute  or  '7/  least  a  mixed  mon- 
arcfiy." 

-The  following  quotation*  are  from  the  Kentucky  Resolutions 
drawn  up  by  Mr.  Jefferson  himself,  (the  italics,  as  in  the  last 
quotation,  are  my  own.)  uThat  the  several  States  composing 
the  United  States  of  America  are  not  united  on  the  principle  of 
unlimited  submission  to  the  General  Government;  but  that,  by 


33 

a,  compact  under  the  style  and  title  of  a  Constitution  of  the 
United  States,  and  of  amendments  thereto,  they  constituted  a 
General  Government  for  special  purposes — delegated  to  that 
Government  certain  definite  powers ;  reserving,  each  State  to  it- 
self, the  residuary  moss  of  right  to  their  own  self-government  f 
that,  whensoever  the  General  Government  assumes  undelegated 
powers  its  acts  are  unauthoritative,  void  and  of  no  force  ;  that, 
to  this  compact  each  State  acceded  as  a  State,  and  is  an  integral 
party — its  co-States  forming  as  to  itself  the  other  pari  v  ;  that 
the  Government  created  by  this  compact  was  not  mode,  the  ex- 
clusive >>r  final  Judge  of  the  extent  of  the  pavers  delegeiteel  t» 
it — since  that  would  hoc/  mode  its  discretion  and  not  the 
Constitution  the  measure  of  its  powers  ;  hut  that  as  in  all  other 
rases  of  compact  among  parties  having  no  common  Judge, 
each  has  an  equal  right  to  Judge  for  itself  as  well  of  infrac- 
tions as  of  the  modi,  and  measure  of  redress* 
'    And  again : 

"  That  the  construction  applied  by  the  General  Government 
(as  evinced  bj  sundry  of  their  proceedings)  t<>  those  pans  of 
the  Constitution  of  the  United  States  which  delegate  to  Con- 
gress a  power  to  lay  and  collect,  taxes,  duties,  imposts  and  exci- 
ses;  to  pay  the  dents  and  provide  for  the  common  defence  and 
general  welfare  of  the  United  States;  and  to  make  all  laws  ne- 
cessary and  proper  for  carrying  into  execution  the  powers  ve.v- 
ted  by  the  Constitution  in  the  Government  of  the  I1  nit  ed  Stales. 
or  any  department  thereof,  goes  to  the  destruction,  of  oil  the 
limits  prescribed  to  their  poicer  by  the  Constitution.  That 
words  meant  by  that,  instrument  to  he  subsidiary  only  Up  the, 
execution  of  the  limited  powers  ought  not  to  he  so  construed,  a* 
themselves  to  give  unlimited  powers,  nor  a  part  so  to  be  '"kin 
as  to  destroy  the  whole  residue  of  the  instrument." 

But  let  u>  examine  your  doctrine  a  little  further  and  see 
whether  it  can  be  reconciled  to  the  construction  lately  put  upon 
the  Constitution  by  the  States  composing  the  Confederacy,  over 
which  you  preside,  and  the  action  lately  taken  by  them. 

The  Constitution  of  the  United  States  gives  Congress  the 
r  to  provide  for  calling  forth  the  militia  to    "suppress  in 
Rurrections."    Carry  out  your  doctrine,  and  Congress  must  of 
the  Judge  of  what  constitutes  'in  insurrection,  as  well 


34 

as  of  the  means  "necessary  and  proper"  to  be  used  in  execu- 
ting the  specific  power  given  to  Congress  to  suppress  it.  Geor- 
gia, claiming  that  the  Congress  of  the  United  States  had  abused 
the  specific  powers  granted  to  it,  and  passed  laws  which  were 
not  "necessary  and  proper"  in  executing  these  specific  pow- 
ers, which  were  injurious  to  her  people,  and  claiming  to  be  her- 
self the  Judge,  seceded  from  the  Union.  Congress  denied  her 
power  or  right  to  do  so,  and  acting  upon  the  doctrine  laid  down 
by  you,  Congress  claiming  to  be  the  Judge,  proceeded  to  adju- 
dicate the  case,  and  determined  that  the  action  of  Georgia 
amounted  to  an  insurrection,  and  passed  laws  for  its  suppres- 
sion. Among  others,  they  have  passed  a  law,  if  Ave  may  credit 
the  newspapers,  which  authorizes  the  President  to  arm  our  ne- 
groes against  us.  Congress  will,  no  doubt,  justify  this  act,  un- 
der the  specific  power  given  to  it  by  the  Constitution,  to  "raise 
armies,"  as  the  armies,  as  well  as  the  militia  may  be  used  to 
suppress  insurrection,  and  to  execute  the  laws.  Apply  the  test 
laid  down  by  you,  and  inquire,  is  this  law  "  calculated  and  in- 
tended" to  carry  out  the  object  (the  suppression  of  the  insur- 
rection, and  the  execution  of  the  laws  of  the  United  States  in 
Georgia)  ?  and  does  it  "  devise  and  create  an  instrumentality 
for  executing  the  specific  power  granted  ? "  Congress,  the 
Judge,  answers  the  question  in  the  affirmative.  Therefore  the 
law  is  constitutional. 

Again,  suppose  you  are  right,  and  Congress  has  the  constitu- 
tional power  to  "  raise  armies "  by  Conscription,  and  without 
the  consent  of  the  States,  to  compel  every  man  in  the  Confede- 
racy, between  18  and  35  years  old,  able  to  bear  arms,  to  enter 
these  armies,  you  must  admit  that  Congress  has  the  same  j>ow- 
er  to  extend  the  law,  and  compel  every  man  between  16  and  GO 
to  enter.  And,  you  must  admit  that  the  grant  of  power  is  as 
broad  in  times  of  peace  as  in  times  of  war,  as  theie  is  in  the 
grant  no  language  to  limit  it  to  times  of  war.  It  follows  that 
Congress  has  the  absolute  control  of  every  man  in  the  State, 
whenever  it  chooses  to  execute  to  the  full  extent  the  power  giv- 
en it  by  the  Constitution  to  "raise  armies."  How  easy  a  matter 
it  would  have  been,  therefore,  had  the  Congress  of  the  United 
States  understood  the  full  extent  of  its  power  to  have  prevented 
in  a  manner  perfectly  constitutional,  the  secession  of  Georgia 


35 

and  Mississippi  from  the  Union.  It  was  only  necessary  to  puss 
a  Conscription  Law  declaring  every  man  in  both  States,  able 
to  bear  arms,  to  be  in  the  military  service  of  the  United  States, 
and  that  each  should  be  treated  as  a  deserter  if  he  refused  to 
serve;  and  that  Congress,  the  Judge,  then  decide  that  this  law 
was  "necessary  and  proper,"  and  that  it  created  an  instrumen- 
tality for  the  execution  of  one  of  the  specific  powers  granted 
to  Congress  to  provide  for  the  execution  of  the  laws  of  the 
Union  in  the  two  States,  or  to  provide  for  "raising  armies.'1 
This  would  have  left  the  States  without  a  single  man  at  their 
command,  without  the  power  to  organize  or  use  military  force, 
ami  without  free  men  to  constitute  even  a  Convention  to  pass 
an  ordinance  of  secession. 

If  it  is  said,  the  people  of  the  States  would  haw  refused  to 
obey  this  law  of  Congress,  and  would  have  gone  out  in  defiance, 
of  it;  it  may  be  replied  that  this  would  have  been  revolution 
and  not  peaceful  secession,  the  right  for  which  we  have  all  con- 
tended— though  our  enemies  have  not  permitted  us  to  part  with 
them  in  peace — the  right  for  which  we  are  now  fighting. 

Your  doctrine  carried  out  not  only  makes  Congress  supreme 
over  the  States,  at  any  time  when  it  chooses  to  exercise  the  full 
measure  of  its  power  to  "raise  armies,"  but  it.  places  the  very 
existence  of  the  State  Governments  subject  to  the  will  of  Con- 
gress. The  Conscription  Act  makes  no  exception  in  favor  ol* 
the  officers  necessary  to  the  existence  of  the  State  Government, 
but  in  substance  declares  that  they  shall  all  enter  the  service  of 
the  Confederacy,  at  the  call  of  the  President,  under  officers 
which  are  in  future  to  be  appointed  by  the  President. 

A-  already  remarked,  Congress  has  as  much  power  to  <■■ 
the  act  to  embrace  all  between  16  and  80,  .•■■>  it  had  to  take  all 
between  18  and  35.  If  the  act  is  constitutional,  it  follows  that 
Congress  has  the  power  to  compel  tie'  Governor  of  every  State 
in  the  Confederacy,  every  member  of  every  Legislature  of 
ry  State,  every  Judge  "i'  every  Court  in  every  State,  every  offi- 
cer of  the  militia  <>t'  every  State,  and  all  be  offic  -rs  to 
enter  the  military  service  as  privates  in  the  armies  of  the  Con- 
federacy, under  officers  appointed  by  the  President,  at  any  time 
when  it  so  decides.  In  other  wordsj  Congr  ss  may  disband  the 
State  Governments  any  day  when  it,  as  ides  that 


by -bo  doing  it   "creates  an  instrumentality  Cut-  executing  the 
specific  power  "  to  " raise  armies." 

If  Congress  ha?  the  right  to  discriminate,  and  take  only  those 
between  1  8  and  35,  it  has  the  right  to  make  any  other  discrimi- 
nation it  may  judge  "necessary  and  proper"  in  the  "execu- 
tion of  the  power,"  and  it  may  pass  a  law  in  time  of  peace  or 
war,  if  it  should  conclude  the  State  Governments  are  an  evilr 
that  all  State  officers,  Executive,  Legislative,  Judicial,  and  Mili- 
tary, shall  enter  the  armies  of  the  Confederacy  as  privates  un- 
der officers  appointed  by  the  President,  and  that  the  army  shall 
from  time  to  time  be  recruited  from  other  State  officers  as  they 
may  be  appointed  by  the  States. 

To  state  the  case  in  different  form,  Congress  has  the  power 
under  the  12th  paragraph  of  the  8th  section  of  the  1st  Article 
of  the  Constitution  to  disband  the  State  Governments,  and  leave 
the  people  of  the  States  with  no  other  Government  than  such 
military  despotism,  as  Congress  in  the  exercise  of  the  specific 
power  to  "raise  armies''  (which  I  understand  you  to  hold  is  a 
distinct  power  to  be  construed  separately)  may,  after  an  appli- 
cation of  your  test,  judge  to  be  best  for  the  people. 

For,  as  all  the  State  officers  which  I  mem  ion  might  make  effec- 
tive privates  in  the  armies  of  the  Confederacy,  and  as  the  law 
passed  to  compel  them  to  cuter  the  service  might  "create  an 
instrumentality  for  executing  the  specific  power  to  "raise  ar- 
mies," Congress,  the  fUZlge,  need  only  so  decide  and  the  r.ct, 
would  be  constitutional. 

I  may  be  reminded,  however,  that  Congress  passed  an  Exemp- 
tion Act  after  the  passage  of  the  Conscription  Act,  which  ex- 
empts the  Governors  of  the  States,  the  members  of  the  State 
Legislatures,  the  Judges  of  the  State  Courts,  <fcc,  from  the  ob- 
ligation to  enter  the  military  service  of  the  Confederacy  as  pri- 
vates under  Confederate  officers.  It  must  be  borne  in  mind, 
however,  that  this  very  act.  of  exemption  by  Congress  is  an  as- 
sertion of  the  right  vested  in  Congress  to  compel  them  to  go^ 
when  Congress  shall  so  direct,  as  Congress  has  the  same  power 
to  repeal  which  it  had  to  pass  the  Exemption  Act.  All  the  State 
officers,  therefore,  are  exempt  from  Conscription  by  the  grace 
and  special  fabor  of  Congress  and  not  by  right  as  the  Gov- 
ernments of  the  independent  States  whose  agent,  ami  not  mas- 


tor,  Congress  had  been  erroneously  supposed  to  he.      If  this 
•doctrine  be  correct,  of   what  value  arc  Staty  rights  and 
sovereignty  > 

In  my  former  letter  I  insisted,  under  the  general  rule,  tin  ' 
12th,  15th  and  16th  paragraphs  of  the  section  under  considera- 
tion, all  relating  to  the  same  Subject  Mattel;  should  be  construed 
together.  While  your  language  on  this  point  is  not  so  clear  a> 
an  other  parts  of  your  letter,  1  understand  you  to  lake  issue 
•with  me  here.     You  say  : 

••  Nothing  can  so  mislead  as  to  construe  together  and  as 
whole, the  carefully  separated  clauses,  which  define  the  different 
powers  to  be  exercised  over  distinct  subjects  by  Congress  ,1 

These  are  n ol  carefully  separated  clauses  which  relate  to  dif- 
ferent powers,  to  be  exercised  over  distinct  subjects.     The)   all 
relate  to  the  satin  subject  matter,  the  authority  given  to  ( 
gress  over  the  question  of  war  and  peace.      They  all  relate  to 
the  use  of  armed  force  by  authority  of  Congress.     It",  theri 
Coke,   Blaokstone  and   Mansfield    of  England,    and    Mars 
Kent  and  -  nntry,  with   all  other  intelligent   wri- 

ters on  the  ruh  i  ,  are  to  be  respected  as  author- 

ity, there  can,  if  would  seem,  be  n<>  doubt  of  the  oorrectne* 
the  position  that  these  three  paragraphs,  together  with  all  oth? 
er8  in  the  Constitution  which  relate  to  the  same  subject   in  • 
are  to  be  construed  together  "as  One  whole.*' 

Construe  them  together,  and  the  general  language  in  oile  par- 
agraph} is  so  qualified  by  another  paragraph,  upon  the  sam 
jrrt  matter,  thai  all  can  stand  together,  and  the  whole   when   ta- 
ken together,  establishes  to  my  mind  the  unsoundness  of  your 
argument  and  the  fallacy  of  your  conclusion. 

But  I   must  not  omit  to  notice  your  definition   of  the 
'•militia,*'  and  the  deductions  which  you  draw  from  it. 

You  adopt,  the  definition  of  the  Attorney  General,  that  "the 
militia  are  a  body  of  soldiers  in  a  State  enrolled  for  discipline.'' 
Admit,  for  the  purposes  of  the  argument,  the  correctness  of  the 
definition.  All  persons,  therefore,  who  are  enrolled  for  disci- 
pline under  the  laws  of  Georgia  constitute  her  militia.  V 
the  persons  thus  enrolled  (the  militia)  are  employed  in  tic 
vice  of  the  Confederate  States,  the  Constitution  expressly  re- 
serves to  Georgia  the  appointment  of  tl  The  Con- 


scription  Act  gives  the  President  the  power  by  compulsion  to 
employ  <  very  one  of  those  persons,  between  18  and  35,  in  the 
service  of  the  Confederate  States;  and  denies  to  the  State  the 
appointment  of  a  single  officer  to  command  them,  while  thus 
"employed."'  Suppose  Congress  at  its  next  session  should  ex- 
tend the  act  so  as  to  embrace  all  between  18  and  45,  what  is 
the  result?  "The  body  of  soldiers  in  the  State  enrolled  for 
discipline"  are  every  man  "employed  in  the  service  of  the 
Confederacy,"  and  the  right  is  denied  to  the  State  to  appoint  a 
single  officer,  when  the  Constitution  says  she  shall  appoint  them 
all.  Is  it  fair  to  conclude,  when'the  States  expressly  and  care- 
fully  reserved  the  control  of  their  own  militia,  by  reserving  the 
appointment  of  the  officers  to  command  them,  that  they  inten- 
ded under  the  general  grant  of  power  to  "  raise  armies,"  to 
authorize  Congress  to  defeat  the  reservation  and  control  the 
militia,  with  their  officers,  by  calling  the  very  same  men  into 
the  field,  individually  and  not  collectively,  organizing  them  ac- 
cording to  its  own  will,  and  terming  its  action  "raising  an  ar- 
my" and  not  calling  forth  (he  militia  f  Surely  the  great  men 
of  the  revolution  when  they  denied  to  the  General  Government 
the  appointment  even  of  the^  General  Officers,  to  command  the 
militia  when  employed  in  the  service  of  the  Confederacy,  did 
not  imagine  that  the  time  would  come  so  soon  when  that  Gov- 
ernment, under  the  power  to  "  raise  armies,"  would  claim  and 
exercise  the  authority  to  call  into  the  field  the  whole  militia  of 
the  States,  individually,  and  deny  to  the  States  the  appointment 
of  the  lowest  lieutenant,  and  justify  the  act  on  the  ground  that 
Congress  did  not  choose  to  call  them  into  service  in  their  collec- 
tive capacity,  and  deny  that  they  were  militia  if  called  into  ser- 
vice in  any  other  way. 

If  Congress  has  the  power  to  call  forth  the  whole  enrolled 
force  or  militia  of  the  States  in  the  manner  provided  by  the 
Conscription  Act,  there  is  certainly  no  obligation  upon  Congress 
ever  to  call  them  forth  in  any  other  manner,  and  it  rests  in  the 
discretion  of  Congress  whether  or  not  the  States  shall  ever  be 
permitted  to  exercise  their  reserved  right ;  as  Congress  has  the 
power  in  every  case  to  defeat  the  exercise  of  the  right  by  call- 
ing forth  the  militia  under  a  conscription  act,  and  not  by  requi- 
sitions made  upon  the  States.     It  cannot  be  just  to  charge  the 


States  with  the  folly  ol*  making  this  important  reservation,  sub- 
ject to  any  such  power  in  Congress  to  render  it  litigatory  at  its 
pleasure. 

Again,  you  say  "Congress  may  call  forth  the  militia  to  exe- 
cute Confederate  laws ;  the  State  has  not  surrendered  the  pow- 
er to  call  them  forth  to  execute  State  laws.1' 

"Congress  may  call  them  forth  to. repel  invasion;  so  may  the 
State,  for  it  has  expressly  reserved  this  right/'' 

" Congress  may  call  them  forth  to  suppress  insurrection  and 
so  may  the  State" 

If  the  conscription  law  is  to  control,  and  Congress  may,  with- 
out  the  consent  of  tin'  State  Government,  order  every  man  com- 
posing the  militia  of  the  State,  out  of  the  State,  into  the  Con- 
ate  service,  how  is  the  State  to  call  forth  her  own  militia, 
as  yon  admit  she  has  reserved  the  right  to  do,  to  execute  her 
own  laws,  suppress  an  insurrection  in  her  midst,  or  repel  an  in- 
vasion of  her  own  territory? 

Could  it  have  been  the  intention  of  the  States  to  delegati  \<- 
Congress  the  power  to  take  from  them  without  their  consent 
the  means  of  self  preservation,  by  depriving  them  of  all  tin 
strength  upon  which  their  very  existence  depends? 

After  laying  down  the  position  that  the  citizens  of  a  State  arc 
not  her  militia,  and  affirming  that  the  militia  are  "a  body  or- 
ganized by  law,""  you  deny  that  the  militia  constitute  any  part 
of  the  land  or  naval  forces,  and  say  they  are  distinguished 
from  the  land  end  naval  forces,  and  you  further  say  they  have 
al ways  been  called  forth  as  "  bodies  organized  by  the  States," 
witli  their  officers;  that  they  "  do  not  become  part  of  the  armies 
raised  by  Congress,"  but  remain  militia,  and  that  when  they 
had  been  called  forth,  and  the  exigencies  which  provoked  the 
call  had  passed,  "  they  went  home  again."  The  militia  when 
vailed  fn-th  are  taken  from  the  body  of  the  people,  to  meet  an 
emergency,  or  to  repel  invasion.  If  they  go  in  as  "bodies  or- 
ganized by  the  States,"  you  hold  that  they  go  in  militia,  remain 
militia,  and  when  the  exigency  is  passed  they  go  home  militia, 
but  if  you  call  forth,  the  same  men  by  the  Conscription  Act  for 
the  same  purpose,  and  they  remain  for  the  same  length  of  time, 
and  do  the  same  service,  they  are  nol  militia  but  the  armies  of 
the  Confederacy,  part  of  the  land  or  naval  force.     In  connec- 


40 

tion  with  this  part  of  the  subject  you  use.  the  following  lan- 
guage : 

"At  the  present  moment  when  our  very  existence  is  threat- 
ened by  armies  vastly  superior  in  numbers  to  ours,  the  necessity 
for  defence  has  induced  a  call,  not  for  the  whole  militia  of 
all  the  States,  not  for  any  militia,  but  for  men  to  compose  ar- 
mies for  the  Confederate  States." 

In  the  midst  of  such  pressing  danger,  why  was  it  that  there 
was  no  necessity  for  any  militia ;  in  other  words,  no  necessity 
for  any  "  bodies  of  men  organized  by  the  States,"  as  Avere  many 
of  the  most  gallant  regiments  now  in  the  Confederate  service, 
who  have  won  on  the  battle-field  a  name  in  history,  and  laurels 
that  can  never  fade  V 

Were  no  more  such  bodies  "  organized  by  the  States  "  needed, 
because  the  material  remaining  within  the  States  of  which  they 
must  be  composed  was  not  reliable  V  The  Conscription  Act. 
gives  you  the  very  same  material.  Was  it  because  the  officers 
appointed  by  the  States  to  command  the  gallant  State  regiments 
^and  other  "organized  bodies"  sent  by  the  States  were  less 
■brave  or  less  skillful  than  the  officers  appointed  by  the  President 
%o  command  similar  "organized  bodies?"  The  officers  ap- 
pointed by  the  States  who  now  command  regiments  in  the.  ser- 
vice, will  not  fear  to  have  impartial  history  answer  this  question. 
Was  it  because  you  wished  select  men  for  the  armies  of  the 
Confederacy  ?  The  Conscription  Act  embraces  all,  without  dis- 
tinction, between  !8  and  3">  able  to  do  military  duty  and  not 
legally  exempt.  You  do  not  take  the  militia.  What  do  you 
take?  You  take  every  man  between  certain  ages,  of  whom  the 
militia  is  composed.  What  is  the  difference  between  taking  the 
militia  and  taking  all  the  men  who  compose  the  militia*?  Sitr,- 
ply  this:  In  the  one  case  you  take  them  with  their  officers  ap- 
pointed by  the  States,  as  the  Constitution  requires,  and  call  them 
by  their  proper  name,  "militia,"  "employed  in  the  service  of 
the  Confederate  States."  In  the  other  case  you  take  them  a!! 
as  individuals — get  rid  of  the  State  officers — appoint  officers  of 
your  own  choice,  and  call  them  the  "armies  of  the  Confede- 
racy." And  yet  these  armies,  like  yon  say  the  militia  do,  will 
"go  home"  when  the  exigency  has  passed,  as  it  is  hoped 
<lhey  are  not  expected  to  be  permanent  like  the  regular  ar 


of  the  Confederacy;  or,  in  other  words,  like  the  land  and 
forces  provided  for  in  the  Constitution,  from  which  you  distin- 
guish the  militia.  Indeed,  the  similarity  between  those  "armies 
of  the  Confederacy,"  called  forth  in  an  -  inergency,  to  repel  an 
invasion,  to  be  disbanded  when  the  emergency  is  passed;  and 
the  militia  or  bodies  of  troops  organized  ami  officered  by  the 
States,  called  forth  for  the  same  purpose,  to  be  composed  of  the 
same  material  and  disbanded  at  the  same  time,  is  most  remark- 
able in  everything,  except  the  name  and  the  appointment  of  the 
officers. 

Excuse  me  for  calling  your  attention  to  another  poiut   in  this 
connection. 

As  you  admit  that  the  militia  have  always  been  called  j 
as  "bodies  organized  by  the  States,''  and  when  thus  called  forth 
that  the  States  have  always  appointed  the  officer's,  1  presume 
you  will  not  deny  that  when  the  President,  by  authority  oft 
gross  has  made  a  call  upon  a  State  for  "organized  bodies  of 
soldiers,"  and  they  have  been  furnished  by  the  State  from  the 
body  of  her  people,  they  ha  ice  as  part  o 

■  •  Slate  "  of  the  <  'oufi 

s"  under  the  15th  and    16  graphs  of  tin 

Section  of  the  1st  Article  of  the  Constitution. 

Your  message  to  Congress  recommencing  it-  passage  8 
that  there  wasno  necessity  for  the  act,  to  enable  von  to 
troops,  as  you  admit  that  the  Executives  of  the  States  had  ena- 
bled you  to  keep  in  the  field  adequate  forces,  and  also  that  the 
spirit  oi'  resistance  among  the  people  was  such  that  it   ne 
I  jtllatcd  and  not  stimulated.      You  say: 

•l  I  am  happy  to  assure  you  of  the  entire  harmony  of  pur] 
and  cordiality  of  feeling  which  have  continued  to  exist  between 
myself  and  the  Executives  o\'  the  several  States,  and  it  is  to  this 
cause  thai  our  success  in  keeping  adequate  forces  in  the  fie 
tq  be  attributed.'"      Again  yon  say  : 

"The  vast  preparations  made  by  the  enemy  for  a  combined 
assault  al  numerous  points  on  our  frontier  and  sea  coast,  hava 
produced  the  result  that  might  have  been  expected.  They  have 
animated  the  people  with  a  spirit  of  resistance  bo  general,  so 
resolute  and  so  self-sacrificing,  that  it  require  s  rati 
ulated  than  Co  be  st'mulat  i 


42 

If  then  the  Executives  of  the  States  by  their  cordial  co-ope- 
ration had  enabled  you  to  keep  in  the  held  "  adequate  forces," 
and  the  spirit  of  resistance  was  as  high  as  you  state,  there  was 
no  need  of  a  Conscription  Act  to  enable  you  to  "  raise  armies." 

Since  the  invasion  of  the  Confederacy  by  our  present  enemy, 
you  have  made  frequent  calls  upon  me  as  Governor  of  this  State 
for  "  organized  bodies  "  of  troops.  I  have  responded  to  every 
call  and  sent  them  as  required,  "  organized "  according  to  the 
laws  of  the  State,  and  commanded  by  officers  appointed  by  the 
State,  and  in  most  instances,  fully  armed,  accoutred  and  equipped. 
These  bodies  were  called  forth  to  meet  an  emergency,'  and  as- 
sist in  repelling  an  invasion.  The  emergency  is  not  yet  passed, 
the  invasion  is  not  yet  repelled,  and  they  have  not  yet  returned 
home.  If  your  position  be  correct  they  constitute  no  part  of 
the  land  or  naval  forces  as  they  were  not  organized  nor  their 
officers  appointed  by  the  President,  as  is  the  case  with  the  ar- 
mies of  the  Confederacy,  but  they  were  called  forth  as  bodies 
"  organized  and  their  officers  appointed  by  the  States."  Hence 
they  are  part  of  the  militia  of  Georgia  employed  in  the  service 
of  the  Confederate  States  as  provided  by  the  two  paragraphs 
of  the  Constitution  above  quoted,  and  by  paragraph  16  of  Sec- 
tion 9  of  the  1st  Article  which  terms  them  "militia  in  actual 
service  in  time  of  war  or  public  danger."  They  entered  the 
service  with  only  the  training  common  to  the  citizens  of  the 
State.  They  are  now  well  trained  troops.  But  having  gone  in 
as  "  bodies  organized  by  the  State,"  or  as  militja,  you  say  they 
remain  militia,  and  go  home  militia.  In  this  case  we  seem  to 
agree  that  the  State,  under  the  express  reservation  in  the  Con- 
stitution, has  the  right  to  appoint  the  officers.  I  have  the  writ- 
ten opinion  of  Mr.  Benjamin,  then  Secretary  of  War,  about  the 
time  of  the  last  call  for  twelve  regiments,  concurring  in  this 
view,  and  recognizing  this  right  of  the  State.  And  it  is  proper 
that  I  should  remark  that  the  State  has,  in  each  case,  been  per- 
mitted to  exercise  this  right,  when  the  troops  entered  the  ser- 
vice in  compliance  with  a  requisition  upon  the  State  for  "  or- 
ganized bodies  of  troops."  The  right  does  not  stop  here,  how- 
ever. The  Constitution  does  not  say  the  State  shall  appoint  the 
officers  while  the  organizations  may  be  forming  to  enter  the  ser- 
vice of  the  Confederacy,  but  while  they  "  may  be  employed  in 


43 

the  service  of  the  Confederate  States."  Many  thousands  are 
now  so  employed.  Vacancies  in  the  different  offices  are  fre- 
quently occurring  by  death,  resignation,  &c.  The  Laws  of  this 
State  provide  how  these  vacancies  are  to  be  filled  and  it  is  not 
to  be  done  by  promotion  of  the  officer  next  in  rank,  except  in  a 
single  instance,  but  by  election  of  the  regiment,  and  commission 
by  the  Governor.  The  right  of  the  State  to  appoint  these  offi- 
cers seems  to  be  admitted,  and  is,  indeed,  too  clear  to  be  ques- 
tioned. 

The  Conscription  Act,  if  it  is  to  be  construed  according  to  its 
language,  and  the  practice  which  your  Generals  an-  establishing 
under  it,  denies  to  the  State  the  exercise  of  this  right,  and  pre- 
scribes a  rule  lor  selecting  all  officers  in  future,  unknown  to  the 
laws  of  Georgia,  and  confers  upon  the  President  the  power  to 
commission  them.  Can  this  usurpation  (I  think  no  milder  term 
expresses  it  faithfully)  be  justified  under  the  clause  in  the  Con- 
stitution which  gives  Congress  power  to  "raise  armies?"  and 
is  this  part  oJ  the  Act  constitutional?  If  not,  you  have  failed 
to  establish  the  constitutionality  of  the  Conscription  Act. 

The  14th  paragraph  of  the  9th  Section  of  the  1st  Article  of 
the  Constitution  of  the  Confederate  States  declares  that — 

"A  well  regulated  militia  being  necessary  to  the  security  of 
a  free  State,  the  right  of  the  people  to  keep  and  bear  arms  shall 
not  be  infringed."  This  was  no  part  of  the  original  Constitu- 
tion as  reported  by  the  Convention  and  adopted  by  the  States. 
But  "  The  Convention  of  a  number  of  the  States  having  at  the 
time  of  their  adopting  the  Constitution  expressed  a  desire  in 
order  to  prevent  misconstruction  or  abuse  of  its  powers,  that 
further  declaratory  and  restrictive  clauses  should  be  added, 
Congress  at  the  session  begun  and  held  at  the  city  of  New  York 
on  Wednesday  the  4th  of  March,  1789,  proposed  to  the  Legis- 
latures of  the  several  States  twelve  amendments,  ten  of  which 
only  were  adopted." 

The  second  amendment  was  the  one  above  quoted,  which 
shows  very  clearly  that  the  States  were  jealous  of  the  control 
which  Congress  might  claim  over  their  militia,  and  required  on 
this  point  a  further  "  restrictive  clause  "  than  was  contained  in 
the  original  Constitution. 

The  16th  paragraph  of  the   preceding  Section   expressly  re- 


44- 

■serves  to  the  States  "the  authority  of  training  the  miiitia  ac- 
cording to  the  discipline  prescribed  by  Congress/'  In  connec- 
tion with  this,  you  admit  that  the  States  reserved  the  right  to 
•call  forth  their  own  militia  to  execute  their  own  laws,  suppress 
insurrections  or  repel  invasions.  This  authority  to  call  them, 
forth  would  have  been  of  no  value  without  the  authority  to  ap- 
point officers  to  command  them  ;  and  the  further  authority  to 
train  them;  as  they  cannot  without  officers  and  training  be  the 
well  regulated  militia  which  the  Constitution  says  is  "  necessary 
to  the  security  of  a  free  State." 

The  conclusion  would  seem  naturally  to  follow,  that  the  States 
did  not  intend  by  any  general  words  used  in  the  grant  of  power, 
to  give  Congress  the  right  to  take  from  them,  as  often  as  ap- 
pointed, the  officers  selected  by  them  to  train  and  regulate  their 
militia  and  prepare  them  for  efficiency,  when  they  may  be  called 
forth  to  support  the  very  existence  of  the  State. 

The  Conscription  Act  embraces  so  large  a  proportion  of 
militia  officers  of  this  State,  as  to  disband  the  militia  in  the  event, 
they  should  be  compelled  to  leave  their  commands.  This  would 
leave  me  without  the. power  to  reorganize  them,  as  a  vacancy 
can  only  be  created  in  one  of  these  offices  by  resignation  of  the 
incumbent,  or  by  the  voluntary  performance  of  some  act  which 
amounts  to  an  abandonment  of  his  command,  or  by  a  sentence 
of  a  Court  Martial  dismissing  him  from  office.  The  officer  who 
is  dragged  from  his  command  by  Conscription,  or  compulsion, 
and  placed  in  the  ranks,  is  in  neither  category  ;  and  his  office  is 
no  more  vacated  than  the  office  of  a  judge  would  be,  if  he  were 
ordered  into  military  service  Without  his  consent.  And  unless 
there  be  a  vacancy  I  have  no  right  to  fill  the  place,  either  by  or- 
dering an  election,  or  by  a  brevet  appointment.  I  have  no  right 
in  either  case  to  commission  a  successor  so  long  as  there  is  a  le- 
gal incumbent. 

Viewing  the  Conscription  Act  in  this  particular  as  not  only 
unconstitutional,  but  as  striking  a  blow  at  the  very  existence  of 
the  State,  by  disbanding  the  portion  of  her  militia  left  within 
her  limits,  when  much  the  larger  part  of  her  "  arms-bearing 
people"  are  absent  in  other  States  in  the  military  service  of  the 
Confederacy,  leaving  their  families  and  other  helpless  women  and 
children,  subject  to  massacre  by  -negro  insurrection  for   want  of 


an  organized  force  to  suppress  it,  I  fell  it  an  imperative  duty 
which  I  owed  the  people  of  this  State,  to  inform  you  in  a  former 
letter  that  I  could  not  permit  the  disorganization  to  take  place, 
iic:  the  State  officers  to  be  compelled  to  leave  their  respective 
commands  and  enter  the  Confederate  service  as  Conscripts. — 
Were  it  not  a  fact  well  known  to  the  country  that  you  now 
have  in  service  tens  of  thousands  of  men  without  arms  and  with 
no  immediate  prospect  of  petting  arms,  who  must  remain  for 
months  consumers  of  our  scanty  supplies  of  provisions,  without 
ability  to  render  service,  while  their  labor  would  be  most  valua- 
ble in  their  farms  and  workshops,  there  might  be  the  semblance 
of  :i  plea  of  necessity  for  forcing  the  State  officer*  to  leave  their 
commands,  with  the  homes  of  their  people  unprotected,  and  go 
into  camps  of  instruction,  under  Confederate  officers,  often  much 
more  ignorant  than  themselves  of  military  science  or  training. 
1  must,  therefore,  adhere  to  my  position  and  maintain  the  integ- 
rity of  the  State  Government  in  its  Executive,  Legislative,  Ju- 
dicial and  Military  Departments,  as  long  as  I  can  command  suf- 
ficient force  to  prevent  it  from  being  disbanded,  and  its  people 
reduced  to  a  st;Ue  of  provincial  dependence  upon  ihc  Central 
power. 

If  I  have  used  strong  language  in  any  part  of  this  letter,  1 
beg  you  to  attribute  it  only  to  my  zeal  in  the  advocacy  of  prin- 
ciples and  a  cause  which  1  consider  u<>  less  than  the  cause  of 
constitutional  liberty,  imperiled  by  £he  erroneous  views  and 
practice  of  thQse  placed  upon  the  watch-tower  as  its  constant 
guardians. 

In  conclusion,  I  beg  to  assure  you  that  1  fully  appreciate  your 
expressions  of  personal  kindness,  and  reciprocate  them  in  my 
feelings  towards  you  to  the  fullest  extent. 

I  know  the  vast  responsibilities  resting  upon  you,  and  would 
never  willingly  add  unnecessarily  to  their  weight,  or  in  any  way 
embarrass  you  in  the  discharge  of  your  important  dm 
While  1  cannot  agree  with  you  in  opinion  upon  the  grave  ques- 
tion under  discussion,  I  beg  you  to  command  me  at  all  times 
when  1  can  do  you  a  person;  ce,  or  when  1  can,  without  a 

violation  of  the  constitutional  obligations  resting  upon  me,  do 
o  . '  ■  .  which  we  arc  all  go  vitally  in- 

bed. 


46 

Hoping  that  a  kind  Providence  may  give  you  wisdom  so  to 
conduct  the  affairs  of  our  young  Confederacy  as  may  result  in 
the  early  achievement  of  our  Independence,  and  redound  to  the 
ultimate  prosperity  and  happiness  of  our  whole  people, 
I  have  the  honor  to  be,  very  respectfully, 

Your  obedient  servant, 
JOSEPH  E.  BROWN. 

P.  S. — Since  the  above  letter  was  written  I  see,  somewhat  to 
tny  surprise,  that  you  have  thought  proper  to  publish  part  of 
our  unfinished  cor  espondence. 

In  reply  to  my  first  letter  you  simply  stated  on  the  point  in 
question  that  the  constitutionality  of  the  Act  was  derivable  from 
that  paragraph  in  the  Constitution  which  gives  Congress  the 
power  to  raise  and  suppport  armies.  I  replied  to  that  letter 
with  no  portion  of  your  argument  but  the  simple  statement  of 
your  position  before  me.  You  then  with  the  aid  of  your  Cab- 
inet replied  to  my  second  letter,  giving  the  argument  by  which 
you  attempt  to  sustain  your  position,  and  without  allowing  time 
for  your  letter  to  reach  me,  and  a  reply  to  be  sent,  you  publish 
my  second  letter  and  your  reply  which  is  your  first  argument 
of  the  question.  I  find,  these  two  letters  not  only  in  the  news- 
papers but  also  in  pamphlet  form,  I  presume  by  your  order  for 
general  circulation. 

While  I  cannot  suppose  that  your  sense  of  duty  and  propriety 
would  permit  you  to  publish  part  of  an  unfinished  correspon- 
dence for  the  purpose  of  forestalling  public  opinion,  I  must  con- 
clude that  your  course  is  not  the  usual  one  in  such  cases.  As 
the  correspondence  was  an  official  one  upon  a  grave  constitu- 
tional question,  I  had  supposed  it  Avould  be  given  to  the  country 
through  Congress  and  the  Legislature  of  the  State. 

But  as  you  have  commenced  the  publication  in  this  hasty  and 
as  I  think  informal  manner,  you  will  admit  that  I  have  no  other 
alternative  but  to  continue  it.  I  must,  therefore,  request  as  an 
act  of  justice  that  all  newspapers  which  have  published  part  of 
the  correspondence,  insert  this  reply.  J.  E.  B: 


47 

EXECUTIVE  DEPARTMENT, 
Richmond,  July  10th,  1862. 

Dear  Sir:  I  have  received  your  letter  of  21st  ult.,  and 
would  have  contented  myself  with  the  simple  acknowledg- 
ment of  its  receipt  but  for  one  or  two  matters  contained 
in  it,  which  seem  to  require  distinct  reply. 

I  deemed  it  my  duty  to  state  my  views  in  relation  to  the 
constitutionality  of  the  conscript  law  for  the  reasons  men- 
tioned in  my  letter  to  you,  but  it  was  no  part  of  my  inten- 
tion to  enter  into  a  protracted  discussion.  It  was  conve- 
nient to  send  my  views  to  others  than  yourself,  and  for  this 
purpose  I  caused  my  letter  together  with  yours  to  be  prin- 
ted in  pamplet  form.  I  am  not  aware  of  having  omitted 
any  part  of  your  observations,  nor  did  I  anticipate  any  fur- 
ther correspondence  ou  the  subject.  I  supposed  you  had 
fully  stated  your  views  as  I  had  stated  mine,  and  no  prac- 
tical benefit  could  be  attained  by  further  discussion. 

It  is  due  however  to  myself  to  disclaim  in  the  most  poin- 
ted manner  a  doctrine  which  you  have  been  pleased  to  at- 
tribute to  me,  and  against  which  you  indulge  in  lengthened 
argument.  Neither  in  my  letter  to  you  nor  in  any  senti- 
ment ever  expressed  by  me,  can  there  be  found  just  cause  to 
impute  to  me  the  belief  that  Congress  is  the  final  judge  of 
the  constitutionality  ot  a  contested  power. 

I  said  in  my  letter  that  ''when  a  specific  power  is  granted, 
Congress  is  the  judge  whether  the  law  passed  for  the  pur- 
pose of  executing  that  power,  is  necessary  and  proper." 

I  never  asserted  nor  intended  to  assert,  that  alter  the  pas- 
sage of  such  law  it  might  not  be  declared  unconstitutional 
by  the  Courts  ou  complaint  made  by  au  individual ;  nor 
that  the  judgment  of  Congress  was  conclusive  against  a 
State,  as  supposed  by  you  ;  nor,  that  all  the  co-ordinate 
branches  of  the  general  government  could  together  finally 
decide  a  question  of  the  reserved  rights  of  a  State.  The 
right  of  each  State  to  judge  in  the  last  resort  whether  its 
reserved  powers  had  been  usurped  by  the  general  govern- 
ment, is  too  familiar  aud  well  settled  a  principle  to  admit 
of  discussion. 

As  I  cannot  see  however,  after  the  most  respectful  con 
sideration  of  all  that  you  have  said,  anything  to  change  my 


48 

conviction  that  Congress  has  exercised  only  a  plainly  gran- 
ted specific  power  in  raising  its  armies  by  conscription,  I 
cannot  share  the  alarm  and  concern  about  State  rights 
which  you  so  evidently  feel,  but  which  to  me  seem  quite 
unfounded.  I  am  very  respectfully 

Yours, 
JEFFERSON  DAVIS. 
Gov.  Joseph  E.  Brown, 

Atlanta,  Ga. 


Atlanta,  July  22d,  1862. 

His  Excellency  Jefferson  Davis, 

Dear  Sir  : — I  have  the  honor  to  acknowledge  the  re- 
ceipt of  your  letter  of  the  10th  inst.,  and  am  very  happy 
to  know  that  you  disclaim  the  doctrine,  which  I  think  every 
fair  minded  man  has  attributed  to  you  who  has  read  your 
letter  of  the  29th  May  last,  and  has  construed  plain  Eng- 
lish words  according  to  their  established  meaning. 

When  a  writer  speaks  of  a  tribunal  that  is  to  be  "the 
judge"  of  a  case,  without  qualification,  we  certainly  un- 
derstand him  to  mean,  that  this  judge  has  the  right  to  decide 
the  case.  And  if  the  judge  has  this  right,  the  decision 
must  be  binding  upon  all  the  parties,  and  no  distinct  and 
separate  tribunal,  as  a  different  department  of  the  Govern- 
ment, for  instance,  has  the  right  to  decide  the  same  case,  af- 
ter it  has  been  decided  by  the  judge  having  competent  ju- 
risdiction. It  would  seem  to  be  a  contradiction  iti  terms  to 
say,  that  when  a  specific  power  is  granted,  Congress  is  the 
judge  "whether  the  law  passed  for  the  purpose  of  execu- 
ting that  power,  is  necessary  and  proper,"  and  that,  "the 
true  and  only  test  is  to  enquire,  whether  the  law  is  inten- 
ded and  calculated  to  carry  out  the  object,  whether  it  de- 
vises and  creates  an  instrumentality  for  executing  the  spe- 
cific power  granted  ;  and  if  the  answer  be  in  the  affirmative, 
the  law  is  constitutional,"  and  then  to  say,  after  this  test 
has  been  applied,  and  Congress  has  passed  judgment,  that 
another  department  of  the  Government,  as  the  President, 
or  the  Judiciary,,  or  another  Government,  as  a  State,  may 
itke  up  the  case,  thus  decided  by  the  tribunal,  having,  under 
the  Constitution,  complete  jurisdiction,  and   make  a  differ- 


49 

ent  decision.  It  is,  I  believe  an  established  principle  in  all 
civilized  nations,  that  when  a  Court  of  competent  jurisdic- 
tion,— unless  guilty  of  fraud  or  mistake, — has  finally  deci- 
ded a  case,  the  judgment  is  conclusive  upon  all  the  parties. 

But  you  say,  you  never  asserted  nor  intended  to  assert, 
that  the  judgment  of  Congress  was  conclusive  against  a 
State.  Pardon  me  for  saying  that  you  did  assert  that  Con- 
gress is  the  judge,  and  that  you  did  not  qualify  the  asser- 
tion, by  saying,  the  judge  in  the  first  instance,  nor  did  you 
annex  any  other  qualification  or  exception  in  favor  of  the 
rights  of  a  State,  or  any  other  party.  J  had  no  right  there- 
fore to  suppose  that  you  intended  to  engraft  exceptions 
upon  a  rule  which  you  laid  down  in  the  plainest  terms 
without  exception. 

I  make  the  above  reference  to  your  former  letter,  to  show 
that  I  had  no  disposition  to  do  you  injustice,  and  that  I 
do  not  consider  that  I  misrepresented  your  position,  as  con- 
tained in  your  letter.  The  thousands  of  intelligent  citi- 
zens, in  different  parts  of  the  Confederacy,  who  have  placed 
upon  your  letter  the  same  construction  which  I  had,  will 
doubtless  be  gratified  that  you  now  disclaim  the  dangerous 
doctrine  as  to  the  power  of  Congress  to  which  your  strong 
unqualified  language  seemed  clearly  to  commit  you. 

In  reference  to  the  publication  by  you  of  the  two  letter* 
containing  part  of  our  correspondence,  I  need  only  say,  that 
you  had  devoted  a  large  portion  of  your  letter  to  a  reply 
to  my  argument  which  was  before  you,  and  hac^in  the  same 
letter,  for  the  first  time,  given  the  arguments  by  which  you 
maintain  your  own  position.  These  I  had  never  seen,  and 
as  you  had  replied  at  length  to  my  argument,  it  was,  1 
think,  but  fair  and  just,  according  to  all  rules  of  discussion, 
that  I  have  an  opportunity  to  reply  to  yours,  and  that  the 
whole  case  be  submitted  to  the  country  together.  Unless 
there  were  important  reasons  of  State  which  in  your  judg- 
ment made  it  necessary  to  place  the  discussion  before  the 
country,  incomplete  in  order  to  satisfy  the  discontents 
which  existed  in  the  public  mind,  on  account  of  what  a 
very  large  proportion  of  our  people  regard  as  a  dangerous 
usurpation,  or  unless  other  good  reasons  existed  for  a  depar- 
ture from  the  usual  rule  in  such  cases,  I  am  unable  to  see 
why  the  whole  correspondence,  when  given  to  the  public, 
should  not  have  gone  through  the  usual  official  chauneli. 


50 

I  have  certainly  had  no  wish  to  protract  the  discussion 
of  this  question,  further  than  duty,  and  justice  to  the  peo- 
ple of  this  State  required.  I  feel  that  I  cannot  close,  how- 
ever, without  again  earnestly  inviting  your  attention  to  a 
question  which  you  must  admit  is  "practical." 

I  think  I  have  established  beyond  a  doubt,  in  my  former 
letters,  the  constitutional  right  of  the  State  of  Georgia,  to 
appoint  the  officers  to  command  the  regiments  and  battal- 
ions, which  she  has  sent  into  the  service  of  the  Confederate 
States,  in  compliance  with  requisitions  made  by  you  upon 
her  Executive  for  "organized  bodies"  of  troops.  You  ad- 
mitted in  your  letter,  that  these  bodies  "organized  by  the 
States,"  when  called  forth  by  the  Confederacy  to  repel  inva- 
sion, never  came  otherwise  than  with  their  Compuvij,  Field 
and  General  officers.  Your  former  Secretary  of  War,  now 
Secretary  of  State,  has  also  admitted  the  right  of  the  State 
to  appoint  the  officers  to  command  the  troops  sent  by  her 
into  the  service  of  the  Confederacy,  under  requisition  from 
you. 

You  have  not  thought  proper  in  either  of  your  letters,  to 
give  any  reason  why  the  State  should  be  denied  the  exercise 
of  this  clear  constitutional  right.     In  this  state  of  the  case, 
you   still  exercise  the  appointing  power     which  belongs  to 
the  State,  and  commission  the  officers  who  are  to  commund 
these  troops.     The  laws  of  this  State  give  to  these  gallant 
men,  the  right  to  elect  their   own   officers,    and  have  them 
commissioned  by  the  Executive  of  their   own  State.     This 
question  is  of  the  more  practical  importance  at  present,  on 
account  of  a  large  number  of  gallant   officers  belonging  to 
these  regiments,  having  lately  fallen  upon  the  battle  held, 
whose  places  are  to  be  filled  by  others.     The  troops  volun- 
teered at  the  call  of  the  State,  with  a  knowledge  of  their 
right  to  elect   those  who  are  to  command  them,  and  went 
into  the  held  with  the  assurance  that  they  would    be  per- 
mitted to   exercise    this    right.     It  is   now    denied  them 
under  the  Conscription  Act.     Some1  of  them  have  appeal- 
ed to   me  to  see  that  their  rights  are  protected.     As   an 
act    of  justice   to    brave    men,    who,    by    their   deeds   of 
valor,   have   rendered   their  names  immortal,    and   as   an 
act  of  duty,  which,  as  her  Executive  I  owe  to  the  people 
of  this   State,    I  must   be   pardoned  for    again    demand- 
ing for  the  Georgia  State  troops,   now   under  your  com- 


51 

ra and,  permission  in  all  cases  in  which  they  have  already 
been  deprived  of  it,  or  which  may  hereafter  arise,  to  have 
the  Company,  Field  and  General  officers,  who  are  to  com- 
mand them,  appointed  by  election,  and  commissioned  from 
the  Executive  of  Georgia,  as  guaranteed  to  them  by  the 
constitution  of  the  Confederacy  and  the  laws  of  this  State. 
I  make  this  demand  with  the  greater  confidence,  in  view 
of  the  past  history  of  your  life.  I  have  not  the  documents 
before  me,  but  if  I  mistake  not,  President  Polk,  during  the 
war  against   Mexico,   in  which  you  were  the  Colonel  of  a 

'gallant  Mississippi  regiment,  tendered  you  the  appointment 
of  Brigadier  General  for  distinguished  services  upon  the 
battle  field,  and  you  declined  the  appointment  upon  the 
ground  that  the  President  had  no  right  under  the  constitu- 
tion, to  appoint  a  Brigadier  General  to  command  the  State 
volunteers    then    employed   in  the   service  of  the  United 

i  States,  but  that  the  States,  and  not  the  general  Govern- 
ment, had  the  right,   under  the  constitution,  to   make  such 

'appointments.  If  Congress  could  not  at  that  time,  confer 
upon  the  President  the  right  under  the  constitution,  to  ap- 
point a  Brigadier  General  to  command  State  troops  in  the 
service  of  the  Confederacy,  Congress  certainly  cannot  now, 
under  the  same  constitutional  provisions,  confer  upon  the 
President  the  right  to  appoint,  not  only  the  Brigadier  Gen- 
erals, but  also  all  the  field  and  company  officers  of  State 
troops  employed  in  the  service  of  the  Confederacy.  May  I 
not  reasonably  hope,  that  the  right  for  which  I  contend, 
will  be  speedily  recognized,  and  that  you  will  give  notice 
to  the  Georgia  State  troops,  now  under  your  control,  who 
went  into  service  under  requisitions  made  upon  the  State 
by  you,  that  they  wi'I  no  longer  be  denied  the  practical 
benefit  resulting  from  the  recognition. 

You  conclude  your  letter  by  snyng,  yon  "cannot  share  the 
alarm  and  concern  about  State  Rights,  which  I  so  evidently 
feel."  I  regret  that  you  cannot.  The  views  and  opinionsof  the 
best  of  men,  are  however  influenced  more  or  less  by  the  posi- 
tions in  which  they  are  placed,  and  the  circumstances  by 
Which  they  are  surrounded.  It  is  probably  not  unnatural,  that 
those  who  adminu  -.  md  dispense  the  patronage 

of  a  confederation  of  States,  should  become,  to  some  extent, 
biased  in  favor  of  the  claims  of  the  Confederacy,  when  its 


52 

powers  are  questioned  ;  while  it  is  equally  natural  that 
those  who  administer  the  affairs  of  the  States,  and  are  res- 
ponsible for  the  protection  of  their  rights,  should  be  the 
first  to  sound  the  alarm,  in  ease  of  encroachments  by  the 
Confederacy,  which  tend  to  the  subversion  of  the  rights  of 
the  States.  This  principle  of  human  nature  may  be  clearly 
traced  in  the  history  of  the  Government  of  the  United 
States.  While  that  Government  encroached  upon  the  rights 
of  the  States  from  time  to  time,  and  was  fast  concentrating 
the  whole  power  in  its  own  hands,  it  is  worthy  of  remark, 
that  the  Federal  Executive,  exercising  the  vast  powers  and 
dispensing  the  immense  patronage  of  his  position,  has  sel- 
dom, if  ever,  been  able  to  "share  in  the  alarm  and  concern 
about  State  Rights,"  which  have  on  so  many  occasions, 
been  felt  by  the  authorities  and  people  of  the  respective 
States. 

With  renewed  assurances  of  my  high  consideration  and 
esteem,  I  am,  very  Respectfully, 

Your  ob't.  Serv't., 
JOSEPH  E.  BROWN. 


